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The Insider

Courtroom Battles Expand Over Trump EPA’s Broad Deregulatory Agenda

Legal battles are expanding over a host of water, air quality and climate change policies issued by EPA and other agencies, including early courtroom skirmishes over the agency’s major rule setting a narrow definition of the scope of the Clean Water Act (CWA).

Other litigation seeing significant new action in recent days includes a challenge to the Trump EPA’s rule rescinding the legal basis for power plant air toxics limits, an energy sector push for the Supreme Court to lift an injunction on a key CWA permit for pipelines, and an expansion of states’ novel climate litigation against oil companies.

Regarding the water law, a federal district judge agreed to block EPA’s waters of the United States (WOTUS) rule in Colorado, shortly after a different judge declined to impose a nationwide stay of the policy:

Judge Blocks WOTUS Rule In Colorado While Legal Challenges Increase
A federal judge in Colorado has blocked the Trump administration’s narrowed definition of waters of the United States (WOTUS) from being implemented in that state, hours after another federal judge rejected a nationwide halt to the rule and while legal challenges to the WOTUS policy increase from environmentalists and other EPA critics.

Late June 19, Judge William Martinez of the U.S. District Court for the District of Colorado stayed the rule, finding the new WOTUS rule will create harm to the state, and that Colorado is likely to prevail in its challenge to the rule due to inherent problems in a fractured high court CWA jurisdiction ruling that the administration relies on for its rule.

His ruling came shortly after a federal judge in California the same day denied a request from California, New York and 15 other states to block the rule from going into effect nationwide June 22.

Martinez in his order “finds that Colorado advances an unusual and partly self-contradictory theory of harm, but Colorado has nonetheless satisfied the elements required to obtain preliminary relief. The Court will therefore enjoin [EPA and the Army Corps of Engineers] from implementing their new regulation in Colorado.”

Just days later, the Justice Department (DOJ) on behalf of EPA and the Corps appealed Martinez’ ruling:

DOJ Appeals Stay Of WOTUS Rule In Colorado, Fights Bid To Narrow Policy
The Justice Department (DOJ) is appealing a federal district court’s stay of the Trump administration’s narrowed definition of “waters of the United States” (WOTUS) in Colorado to the U.S. Court of Appeals for the 10th Circuit, and is urging a federal court in New Mexico to deny ranchers’ request to stay a small portion of the rule.

The appeal was docketed in the 10th Circuit June 25 following DOJ’s June 23 notice to the district court that it was appealing the stay.

In air policy, electric utilities and Democratic-led states are intervening on EPA’s behalf in a coal miner’s litigation challenging Obama-era utility mercury standards, warning that the agency might offer a weak defense of the rule:

Fearing Weak EPA Defense, States And Utilities Intervene To Protect MATS
Electric utilities and 16 mainly Democratic-led states are seeking to intervene in a coal company’s suit challenging the Obama EPA’s mercury and air toxics standards (MATS), aiming to defend the agency’s landmark air toxics policy and fearing the Trump administration will not “zealously” defend the rule because of its deregulatory agenda.

The coal company, Westmoreland Mining Holdings, filed suit challenging the mercury and air toxics standards (MATS) after EPA completed its rule rescinding a cost-benefit finding that it is “appropriate and necessary” to regulate the sector.

The agency has argued MATS should remain in place under applicable appellate court precedents.

But the utilities, states and environmental groups are both intervening in the Westmoreland case, while also filing a separate challenge to EPA’s rule scrapping the “appropriate” finding.

“EPA’s view that regulation of power plant hazardous air pollution is not ‘appropriate and necessary’ to protect public health makes it unlikely that EPA will zealously present to this Court all available and necessary arguments to defend a rule that it no longer believes to be good public policy,” the states say.

In energy news, oil and gas companies are backing DOJ’s call for the high court to overturn a lower court’s vacatur of a key CWA permit used by oil and gas pipelines:

Energy Sector Cites Legal Flaws In Bid For High Court Stay Of NWP 12 Ruling
The energy sector is backing the Justice Department’s (DOJ) call for the Supreme Court to stay a district court’s vacatur of a federal Clean Water Act (CWA) general permit for constructing new oil and gas pipelines, citing numerous alleged legal flaws with the lower court’s ruling and claiming widespread harms from the resulting halt in permitting.

“A stay is needed because the district court’s injunction is inflicting enormous harm on TC Energy, on other oil and gas pipelines, and on the workers and communities that benefit from both pipeline construction and transportation,” the energy company building the Keystone XL pipeline says in a June 17 brief to the high court.

Separately, a coalition of gas and power industry groups, headed by the American Gas Association, argues the May 11 order from a Montana district court that blocked the Army Corps’ nationwide permit 12 for new pipelines “is legally flawed, and it will cause immediate and irreparable harms.”

Environmentalists have applauded the ruling, in part because it could slow down construction of long-lived fossil fuel infrastructure that they argue is contributing to climate change.

Speaking of climate, Minnesota and the District of Columbia are launching the latest in a series of novel lawsuits against the oil sector, arguing it has defrauded the public for decades about its role in contributing to global warming:

D.C. Joins Several States In Pressing Climate Fraud Suits Against Oil Firms
The District of Columbia is launching a climate change fraud suit against major oil companies in D.C. Superior Court, joining a handful of states in filing similar litigation, as well as a series of climate “nuisance” suits brought mostly by local governments.

“For over five decades, Defendants, four of the largest oil and gas companies, have systematically and intentionally misled consumers in Washington D.C. about the central role their products play in causing climate change, one of the greatest threats facing humanity,” D.C. Attorney General (AG) Karl Racine (D) writes in a June 25 complaint.

That was filed just one day after Minnesota AG Keith Ellison (D) launched another climate fraud suit against oil interests. The cases are similar to pending litigation by Massachusetts against oil giant ExxonMobil. However, they come after New York failed in its own case against Exxon, which focused on investor fraud issues.

In addition, the fraud cases are separate from a series of climate nuisance suits that have been brought largely by local governments across the country and seek significant damages. The litigants have seen some procedural success in having them kept in state courts, where they were filed, rather than federal court where industry wants them removed.

Overall, the wave of litigation against the oil sector is seen as heightening legal and public pressure on the industry to respond to calls to shift to a low-carbon economy.