The Story Thus Far: Environmental Law
Over the past week, President Trump has made headway on his oft-repeated promise to dismantle environmental regulations. Through an executive order, he instructed the EPA to rollback the Clean Water Rule, which protects the nation’s streams and wetlands. Many expect that Trump will soon issue another order tackling the Clean Power Plan, President Obama’s hallmark environmental policy, implementation of which has been blocked by the Supreme Court.
Trump instructed the EPA to rollback the Clean Water Rule—a first step in his effort to dismantle Obama-era EPA regulations (NYT, WSJ, WaPo).
o Brad Plumer (Vox) argues that this directive will prove difficult and time consuming for EPA Administrator Scott Pruitt, as he will have to create a new rule that likely will end up being challenged in the Supreme Court.
o Dominique Mosenberg (Huffington Post) discusses the implications of eliminating the Clean Water Rule.
o Michael Burger and Jessica Wentz from the Sabin Center for Climate Change Law posit that Trump’s executive orders aiming to dismantle government regulation undermine Congressional authority.
o Richard Revesz has criticized the order as jeopardizing the environment.
o Meanwhile, as the Clean Water Rule remains in effect, the NRDC has filed suits in the 4th and 9th Circuit Courts of Appeal alleging that stormwater runoff from industrial, commercial and institutional sites are contributing to toxins in watersheds because the EPA failed to require the sites to obtain permits and reduce runoff—as required under the Clean Water Act.
Scott Pruitt announced he is unconvinced of the link between CO2 and global warming (NYT).
o In the Washington Post, Chris Mooney and Brad Dennis note that Pruitt’s denial flies in the face of international scientific consensus and the EPA’s own Climate Change website.
o David Roberts (Vox) argues that Pruitt’s individual beliefs are not that important, and outrage is more appropriately directed at the fact that the GOP rejects the need to act on climate change.
President Trump has cleared the way for two major oil pipelines, resurrecting the Keystone Pipeline and setting the stage for expedited review of the Dakota Access Pipeline (NYT).
o Secretary of State Rex Tillerson recused himself from the Keystone Pipeline permit process because of the possibility that Exxon Mobil would benefit from the approval of the pipeline (NYT, WaPo).
o The pipelines will present legal obstacles for environmentalists and other groups seeking to halt them. For example, the DC District Court has ruled against Native American Tribes’ effort to block the Dakota Access Pipeline.
o Wayne D’Angelo, an energy and environmental lawyer with Kelly Drye & Warren believes that legal challenges will be difficult to bring because “Presidents are by and large entitled to take their agencies in different direction and serve their policy goals.” Brad Plumer (Vox) agrees that with Trump’s endorsement, approval of the pipelines is much more likely.
The Our Children’s Trust lawsuit against the United States will continue (WaPo).
o On November 10, 2016 the District Judge denied the Government’s motion to dismiss, stating that “Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.”
o The complaint asserts that through the government’s affirmative actions in causing climate change, it has violated the youngest generation’s constitutional rights to life, liberty and property, and has failed to protect essential public trust resources.
o Michael Gerrard says that if the lawsuit is successful and survives appeal it would be a “revolutionary development,” but he is skeptical that it will succeed.