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Study Sees 'Early Victories' In Climate Rollback Suits, But Uncertain Result

February 20, 2018

A comprehensive study of climate change litigation in the first year of the Trump administration finds that the vast majority of pending cases seek to increase protections rather than roll them back, and while courts have halted some regulatory stays and delays, the study says it is too soon to tell whether Trump critics will succeed in blocking policy rollbacks.

The Feb. 14 working paper, “U.S. Climate Change Litigation in the Age of Trump: Year One,” by Dena Adler of the Sabin Center for Climate Change at Columbia University, concludes that while “litigants have scored some early victories from courts and pressured agencies to publish outstanding rules, the long-term 'stickiness' of these individual outcomes remain uncertain.”

It adds: “The termination of an illegal administrative stay of a rule or the publication of a withheld rule does not preclude the agency from subsequently rolling back the same climate change policies through the rulemaking process.”

The paper notes that the “vast majority” of climate-related cases in the Trump era are pending. As of Feb. 1, just 20 of the 82 cases identified by the paper had reached some an “intermediate or final resolution through a judicial decision, dismissal, denial, withdrawal, and/or rulemaking response from the involved agency.” However, most of those are not over Obama-era climate rules the Trump administration wants to roll back, but rather are over environmental review and permitting decisions for fossil fuel infrastructure.

Many policy rollbacks by Trump officials are in the works, the paper notes, adding that 2018 could be a key year for the resolution of cases over some of the Trump climate rollbacks.

“Meanwhile, lawsuits challenging delays will keep climate policies in effect during the many months or years it takes to accomplish regulatory repeals and prevent any illegally execute rollbacks from establishing new precedent,” the paper says.

The paper divides the climate litigation into five broad categories, noting that there are three lawsuits seeking to advance climate protections for every suit opposing climate regulation.

Fourteen of the 60 pro-climate policy cases, or 23 percent, defend Obama administration climate change policies, while the other 46 concern transparency, environmental review and permitting or other climate protections.

About 27 percent of the total cases favor climate policy deregulation and seek to undermine climate protections or attack supporters of climate protections, including petitions to review Obama administration rules and challenges to state denials of permits for fossil fuel infrastructure.

Administrative Delays

The paper also notes that the courts were quick to strike down illegal delays and that no climate policy rollbacks were upheld on their merits in 2017. Of 14 cases directly defending Obama-era climate policies, six reached some form of resolution, with courts finding administrative delays and compliance postponement efforts to be illegal.

High-profile examples include a U.S. Court of Appeals for the District of Columbia ruling that vacated EPA's administrative stay of its methane rule for new oil and gas equipment, as well as a California district court ruling that scrapped an Interior Department effort to delay implementing a separate methane rule.

Adler says in a Feb. 14 blog post that, “Donald Trump claims to have delivered on deregulation in his first year as President. While independent reporting questions the veracity of his assertions, climate change is one arena where the Trump Administration's regulatory rollbacks have been both visible and real. The Administration has delayed and initiated the reversal of rules that reduce greenhouse gas emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or reversed energy efficiency standards; undermined consideration of climate change in environmental review; and hindered adaptation to the impacts of climate change.”

The study identified 64 deregulatory climate actions the administration took in 2017 but Adler notes those “efforts have met with constant resistance, with those committed to climate protections bringing legal challenges to many, if not most, of the rollbacks.”

Adler says the detailed paper categorizes and reviews 82 cases filed last year to understand whether they countered the deregulatory efforts. It divided the cases into those that support climate protections, meaning if the plaintiffs or petitioners win they would uphold or advance such protections, and suits that would undermine climate policy.

She notes that five of the cases were filed before 2017 but are counted because the Trump administration's position “pivoted” toward deregulation whereas the Obama administration had defended the rule.

EPA and the Interior Department were the most frequent defendants in the cases, at 55 percent of the climate cases against federal defendants. The claims were filed under a variety of environmental laws, with the Clean Air Act, the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act playing a role in 41 of 42 cases involving environmental law. Another 36 cases involved the Administrative Procedure Act and 14 cited the Freedom of Information Act. -- Dawn Reeves (dreeves@iwpnews.com)

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