As the Biden administration begins the daunting job of rebuilding U.S. climate policy, it has gotten help from an unexpected, and perhaps unlikely, source—the federal courts.
In Biden’s first few weeks in office, federal judges scrapped the Trump administration’s weak power plant pollution regulation, its rule limiting science in environmental decision-making and a decision opening vast areas of the West to new mining.
The rulings show that although President Donald Trump left his mark on the federal courts with his record-breaking pace of judicial appointments, his influence has not been great enough to prevent federal judges from playing a part in dismantling his deregulatory legacy. And the series of decisions also allows the Biden administration to move forward with some confidence about its own ambitious regulatory agenda, as White House National Climate Adviser Gina McCarthy explained at a major energy industry conference last week.
“As time goes on, we realize how unsuccessful the prior administration was in actually rolling back good regulations,” McCarthy said in a virtual discussion session at CERAWeek by IHS Markit, an annual conclave of top oil, gas and utility executives. “In the courts, even with the new appointees under the Trump administration as judges, we still won over and over and over again, because there is a law in our country. And when you put on that black robe, you tend to want to do your job.”
The Biden team’s work on writing new climate regulations begins in earnest soon, with the Senate slated to vote Wednesday on his nomination of Michael Regan, North Carolina’s top environmental official, to head the Environmental Protection Agency. Another point person in executing the Biden climate agenda, Rep. Deb Haaland, (D-N.M.), cleared a Senate committee last week and is on her way to confirmation as the first Native American person to head the Interior Department.
Regan, Haaland and the rest of the Biden climate team may get less help from the federal courts as time goes on. Legal scholars expect that Trump-appointed judges will be skeptical of aggressive government action on climate without explicit authority from Congress, and Trump appointees now occupy one-third of the seats on the appellate bench, including three on the Supreme Court.
But for now, a confluence of factors have given the Biden administration some early legal wins—including the savvy of environmental group litigators, the desire of industry to strike a cooperative stance with the new administration and the legal missteps of the Trump administration.
“We saw that many actions by the Trump administration were a deliberate and illegal effort to permanently limit the ability of EPA to do its job protecting people and the environment,” said Ben Levitan, a senior attorney at the Environmental Defense Fund, one of the groups that have spearheaded the recent challenges. “These decisions clear the way for the Biden-Harris team to turn to the critically important work ahead.”
Trump’s ‘Tortured’ Misreading of the Clean Air Act
The biggest break for the Biden team thus far came at the U.S. Court of Appeals for the D.C. Circuit, where a three-judge panel issued a decision to vacate the Trump administration’s rollback of President Barack Obama’s signature climate policy, its Clean Power Plan. The day before Inauguration Day, the judges excoriated the Trump administration for designing a toothless regulation on power plant greenhouse gas pollution based on what it said were “a tortured series of misreadings” of the Clean Air Act.
Trump’s EPA argued it had no authority to set standards that encourage steps like switching from coal to natural gas or renewable energy to cut carbon emissions. Instead, the Trump EPA said it could only mandate tweaks like efficiency improvements at individual coal plants (while not addressing natural gas plants at all.) But in reality, such improvements do little to slash carbon; the only commercial technology for achieving large cuts in power plant carbon emissions is to switch to cleaner fuels. As a result, the Trump “Affordable Clean Energy” rule would have curbed greenhouse gas emissions from power plants less than 1 percent.
The three-judge panel ruled that the Trump power plant rule “hinged on a fundamental misconstruction of … the Clean Air Act.” Judge Justin Walker, a Trump appointee on the panel, dissented on the legal reasoning but joined in the judgment with two Obama appointees, Judges Patricia Millett and Cornelia Pillard.
At his Feb. 3 confirmation hearing, Regan deflected a question on the legal issue in that case from a supporter of the Trump rollback—Sen. Shelley Moore Capito (R-W.Va.), the top-ranking Republican on the Senate Environment and Public Works Committee. Instead, Regan indicated that under his leadership the EPA would not be returning to the Obama approach in the wake of the Trump rule being struck down by the court.
“It presents a significant opportunity for the Environmental Protection Agency to take a clean slate and look at how do we best move forward,” he said.
And in a Feb. 12 motion with the D.C. Circuit, the Biden EPA detailed why it viewed the Obama rule as obsolete: preliminary data showing that U.S. power industry carbon emissions were already down 34 percent from 2005 levels by 2019, surpassing the Obama administration’s goal of a 32 percent cut 11 years early. That drop, due to power companies switching to natural gas and renewable energy as they have become less expensive than coal, means that the Biden administration has progress to build upon as his administration seeks to write regulations to put the nation on track to 100 percent carbon-free electricity by 2035.
“We have lost time, which in the climate space is precious,” McCarthy said at CERAWeek. “But we haven’t lost reductions.”
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On March 5, the D.C. Circuit officially issued its mandate vacating the Trump power plant rule, while granting the Biden EPA’s motion not to reinstate the Obama Clean Power Plan.
Technically, any parties to the power plant case still could appeal the decision. But it is far more likely that instead of litigating over a Trump rule that the Biden administration has no intention of reviving, foes of climate regulation instead will direct their energy to challenging a new Biden policy when it emerges.
For now, the Biden administration is freed of the job of repealing the Trump rule—a process which could have taken months—and has a D.C. Circuit opinion affirming its authority to use the Clean Air Act to enact strong regulation on carbon emissions from power plants.
“It’s very, very helpful to have the D.C. Circuit’s view that rejects the constrained, narrow, and basically enfeebling interpretation of the Clean Air Act and recognizes that the EPA has broader and meaningful authority,” said David Doniger, senior strategic director of the climate and energy program at the Natural Resources Defense Council.
Trump’s Speed on ‘Transparency’ Rule Was His Own Undoing
On Jan. 6, the same day Trump supporters stormed the U.S. Capitol, his administration finalized what was widely viewed as an anti-science rule that would have made it much harder for the Biden EPA and subsequent administrations to use scientific studies that rely on confidential patient data in regulating air pollution and other environmental hazards.
But within a month, a federal judge in Montana vacated the so-called “Transparency in Regulatory Science” rule that had been on some fossil fuel industry groups’ wish list for years. It treated the privacy protections around individual health data as a nefarious form of secrecy—and, as a result, reduced the government’s ability to use some of the most powerful human health studies to require stricter controls on air and water pollution.
“The ‘censored science’ rule was extraordinarily broad in the damage that it would do to EPA,” said Levitan, using a nickname for the rule taken up by its opponents in the environmental and scientific communities. “It affected rulemakings. It affected scientific analyses. And because it would impact so many actions, including protections that we needed the Biden-Harris administration to develop right away, it was important to reverse it as quickly as possible.”
Steps that the Trump administration took to try to bulletproof the rule actually proved to be its undoing.
Instead of the usual 30-day wait for the rule to go into effect—a delay that would have allowed environmentalists to petition the Biden administration to review the rule—the Trump EPA made it effective immediately, saying speed was “crucial for ensuring confidence in EPA decision-making.” And the Trump EPA asserted that its authority for the rule was the Federal Housekeeping Statute, a law governing internal agency procedures—meaning that Congress could not eliminate it using lawmakers’ power under the Congressional Review Act to reverse “midnight” rules approved in the final weeks of an administration.
But U.S. District Judge Brian Morris, chief judge of the District of Montana, ruled that the EPA had demonstrated the rule was not urgent by taking more than two and a half years to finalize the regulation amid an outcry from the scientific and academic community. And on Feb. 2, acting on an unopposed motion by the Biden administration, Morris vacated the rule entirely as having no legal basis. It was not a procedural “housekeeping” matter, but a substantive rule with real-world impact: “It makes a substantive determination of how the agency should weigh particular scientific information in future rulemakings,” he said.
Even though some industry groups had supported the Trump “transparency” rule during the regulatory process, not one of them intervened in court to save the regulation.
“Scientific transparency is a central tenet of the scientific process and our industry supports the use of a common framework,” said Jess Szymanski, spokeswoman for the American Petroleum Institute. But she made clear that the largest oil industry trade group was looking ahead: “API remains focused on working with the Biden administration to advance sound regulatory policies that increase certainty and transparency.”
It wasn’t Morris’ first finding that the Trump administration had overstepped the bounds of the law. Morris, an Obama appointee, had ruled against the Trump administration in a number of high-profile cases, including those that tied up construction of the Keystone XL pipeline—the proposed link between Canada’s carbon-intensive oil sands and Texas refineries, which Biden canceled on his first day in office.
Some supporters of the Trump “transparency” policy attributed the loss to judicial bias, and the environmental groups’ move to file their challenge in a state, Montana, which has no Trump-appointed federal judges.
“It’s no surprise that regulators prefer secret science to real science, but it’s disappointing to learn that some judges do as well,” said Myron Ebell, director of the energy program at the conservative think tank, the Competitive Enterprise Institute, which hosted the virtual event where Trump EPA Administrator Andrew Wheeler unveiled the final rule in January.
But Richard Revesz, director of the Institute for Policy Integrity at New York University Law School, said that the Trump administration’s legal errors were “sufficiently egregious that it’s likely that any judge would have struck it down.”
The Institute tracked the Trump administration’s record in defending its deregulatory agenda in the courts, and found that it lost 80 percent of the 112 cases decided on its environment, energy, and natural resources rollbacks. These included not only EPA rollbacks but efforts at Trump’s Interior Department to open up more federal lands to development.
A federal judge in Idaho on Feb. 11 overturned a Trump administration Interior Department decision to strip protections from 10 million acres, mostly in Nevada and Idaho, to allow mining in vital habitat for the greater sage grouse. It was the latest of a string of court victories to protect the iconic western bird from fossil fuel development, grazing and mining.
The Trump administration’s record was somewhat better—about 50-50—in the environmental rule cases decided by Republican-appointed federal judges. Even so, some of those losses were major, including a decision in August that the administration had illegally reduced penalties for violators of fuel economy standards. That was a unanimous ruling by a federal appeals panel in New York composed of three Trump appointees.
“The reason for these losses is that the Trump administration has run roughshod over the requirements of administrative law and has acted inconsistently with the established norms of the scientific and economics communities,” Revesz said.
Despite Recent Wins, Legal Battles Loom for Biden Over Climate
Still, many legal experts expect the Biden administration will face a tough time in the inevitable court battles that are ahead over its climate agenda, simply because there are so many Trump appointees. Trump appointed 226 federal judges—fewer than his three immediate predecessors, but more in one term than any chief executive since President Jimmy Carter. Trump’s most dramatic impact was on the appeals courts, where he appointed 54 judges, just one less than Obama appointed in two terms.
Trump judges, all recommended by the conservative Federalist Society, generally have a narrow view of the government’s authority to act without an explicit law by Congress to curb carbon pollution. Of course, the Supreme Court ruled in the landmark 2007 Massachusetts v. EPA case that the Clean Air Act gave EPA authority to regulate greenhouse gases as any other pollutant. But the decisive vote in that 5-4 decision was Justice Anthony Kennedy, now retired and replaced by Justice Brett Kavanaugh, who once said the Clean Air Act was “a thin statute” on which to base climate policy.
“The question the Biden administration is going to face is how to engage in rulemaking in the shadow of the Supreme Court,” Ann Carlson said in December at a virtual forum hosted by the Environmental Law Institute. At the time, she was director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law.
Carlson will now have a chance to do hands-on work on that question—she has since been appointed chief counsel of the National Highway Traffic Safety Administration, the agency that shares responsibility for fuel economy standards with the EPA.
Back in December, Carlson said she would urge the Biden administration to act boldly, despite the make-up of the courts. “The advice I would give if I got to decide what direction this all is going to go in, is not to sacrifice ambition, even understanding the court could rein in some of EPA’s rulemaking authority,” she said. “The climate crisis is urgent and the Clean Air Act remains one of the most powerful tools.”