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The Insider

2020 Starts With Flurry Of Legal, Regulatory Developments For Trump’s Agenda

The new year starts with a flurry of activity on environmental policy left over from the closing days of 2019, with some EPA court cases seeing fresh action, the agency’s advisers faulting several planned rule rollbacks, and the White House advancing a streamlined environmental review plan.

During the holiday break we were tracking relevant court and regulatory dockets and other developments to see how the administration intends to finalize a suite of deregulatory policies before the November election in which President Donald Trump is seeking a second term.

Most of the activity over the past few weeks occurred in the courts, including two new rulings giving the Trump administration and Republicans wins in their efforts to pare back rules:

Backing Trump, Judge Rejects Challenge Over ‘2-for-1’ Executive Order
A federal district judge has rejected a long-pending suit over President Donald Trump’s 2017 executive order (EO) commanding agencies to balance out each new regulation they issue by identifying two existing rules for repeal, holding that the plaintiffs never identified a specific rule that was delayed or dropped because of the EO.

9th Circuit Rejects Environmentalists’ Suit To Limit Or Overturn CRA
The U.S. Court of Appeals for the 9th Circuit has rejected the Center for Biological Diversity’s (CBD) long-running challenge aiming to limit or overturn the Congressional Review Act (CWA), finding Congress has broad discretion to scrap EPA and other agencies’ rules with a streamlined voting process that limits judicial review.

In the first ruling over the “two-for-one” deregulatory policy, a district court on Dec. 20 held that despite years of fact-finding, environmentalists, unions and other pro-regulatory groups were unable to produce clear evidence that any of the Trump administration’s myriad rule delays or reversals were directly due to Trump’s EO 13771, issued in January 2017, or the White House Office of Management & Budget’s (OMB) implementing guidance.

As a result, the judge said the plaintiffs could not show they had been harmed by the order and therefore lacked standing to sue.

Additionally, a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit on Dec. 30 either dismissed or denied on the merits various elements of the Center for Biological Diversity’s wide-ranging challenge to the Congressional Review Act (CRA) and Congress’ use of the law in 2017, when it overturned 13 Obama-era regulations.

While the case did not directly involve any EPA regulations, the ruling affects the law as it applies to all agencies going forward including EPA.

In the climate arena, the D.C. Circuit is restarting a suit over trailer GHG standards, while states and environmentalists are asking that court to pause their challenge to EPA’s decision to scrap California’s auto greenhouse gas authority:

D.C. Circuit Restarts Trailer GHG Case, Rejects Bid For Quick Argument
The U.S. Court of Appeals for the District of Columbia Circuit is restarting truck manufacturers’ suit over EPA and Transportation Department rules limiting greenhouse gases from tractor trailers, though the court is rejecting the trailer makers’ call to quickly hold oral argument within the first few months of 2020.

Petitioners Seek To Stay D.C. Circuit Suit Over EPA Vehicle GHG Waiver
States and environmental groups challenging EPA and the Transportation Department’s (DOT) rule preempting California’s auto greenhouse gas rules are urging an appellate court to pause their case against EPA’s portion of the rule, saying it should wait until a federal district court rules on a separate suit over DOT’s part of the rule.

In the trailer suit, the appellate court lifted a long-standing abeyance in industry’s challenge to Obama-era GHG rules for the sector, outlining in its place a briefing schedule for industry, EPA and supporters of the 2016 standards, with briefing slated to conclude June 2.

That date is important because the D.C. Circuit generally does not hear arguments during a summer break that starts in mid-May, and the court’s rules require briefing to conclude at least 45 days before argument.

Trailer makers had called for a quick briefing schedule that would allow for oral argument in the case in May, though the Justice Department (DOJ) countered with a schedule in which briefing would conclude in early July.

Meanwhile, in litigation over administration plans to preempt California’s vehicle GHG rules, a California-led state coalition and environmental groups want to pause their appellate litigation over the administration’s decision to preempt state GHG rules -- a request that directly contradicts DOJ’s push to expedite those suits.

Critics say the D.C. Circuit should wait for a lower court to consider their separate challenge to the Transportation Department’s portion of the preemption rule -- though the administration is trying to quash that suit.

In a Dec. 27 order, the court issued a Jan. 10 deadline for responses to the dueling motions to expedite or pause the ligation, as well as a Jan. 17 deadline for any replies.

In water news, two appellate courts are dismissing suits related to the scope of the Clean Water Act (CWA), though litigation on that issue is far from over:

Courts Dismiss Two Suits Over Repealed Obama-Era CWA Jurisdiction Rule
Two federal appeals courts have dismissed separate challenges to district court rulings brought by state, industry and environmental groups over the Obama administration’s Clean Water Act (CWA) jurisdiction rule, after the Trump administration’s repeal of the rule became effective Dec. 23, although other suits targeting the repeal rule by other parties remain active.

Separate rulings by the 10th and 11th Circuits dismissed cases over the Obama-era rule outlining the scope of the water law, given that the Trump EPA has formally repealed that measure.

Several other challenges to the 2015 rule remain pending in federal district and appellate courts, but many are likely to see similar dismissal requests in the coming days.

The repeal rule reverted CWA jurisdictional definitions to 1986 regulations and related guidance while the Trump administration prepares to issue a new definition of waters of the United States. But the future of the repeal regulation remains uncertain as it faces challenges from agriculture and environmental groups, landowners, and Democratic state attorneys general.

EPA sent the new definition for White House interagency review Dec. 5, and the agency says it plans to promulgate the final rule in January.

Speaking of the White House, the Council on Environmental Quality’s (CEQ) draft proposal to overhaul its implementing rules for the National Environmental Policy Act (NEPA) cleared interagency review, the last step before public release:

As NEPA Rule Clears OMB Review, Critics Fear Agencies’ Curbed Roles
As the Trump administration prepares to propose a rule to streamline National Environmental Policy Act (NEPA) reviews, EPA and other critics are faulting its “one federal decision” policy that coordinates agencies’ reviews, arguing it elevates views of agencies that support projects and diminishes EPA and others concerned about environmental harms.

The proposal cleared OMB review Dec. 20, and could be released in the coming days. It comes after some critics lamented Trump’s “one federal decision” policy under NEPA for elevating views of agencies that support projects and downplaying concerns about environmental harms.

“That’s a recipe for who is going to be doing the dominance. It will be the proponent agency, right?” said Oliver Houck, an environmental law professor at Tulane University, speaking during a Dec. 17 event on the future of NEPA hosted by the Environmental Law Institute (ELI).

In the case of a major highway project, he argued, an agency such as the Federal Highway Administration is likely to “control the shots” and produce a single environmental impact statement after consulting EPA and other agencies.

Speaking of EPA, the agency’s science advisers are offering criticism of several high-profile regulatory rollbacks, amid a broader clash about the advisers’ role:

Criticizing Rollbacks, SAB Highlights Clash With EPA Over Proper Role:
EPA’s science advisers are sharply criticizing several major deregulatory initiatives being advanced by the Trump administration, raising legal threats to those rules while also underscoring the importance of a broader clash between the advisers and Administrator Andrew Wheeler over the board’s future role reviewing such rules.

The Science Advisory Board (SAB) in a series of Dec. 31 draft reports details alleged flaws with the technical and scientific support for EPA’s proposed rule rolling back Obama-era vehicle GHG limits, its plan to narrow the jurisdiction of the CWA, its proposed rollback of power plant mercury regulations and its plan to limit the use of certain scientific information when crafting new rules.

It remains far from clear how or whether SAB’s advice will significantly alter the fate of the rules at issue, given that many of them are nearing completion. However, some observers have said that the board’s negative remarks could pose litigation risks for the policies, in the event that the agency dismisses the criticism.