By Nichola Groom and Valerie Volcovici
Summary
• Administration moves to rapidly slash regulations through new executive orders
• EPA opens door to exemptions for air, water rules while formally undertakes deregulation process
• Environmental groups ready to launch legal defense of clean air, water rules
(Reuters) – U.S. environmental groups say they are hiring lawyers and preparing for a major legal showdown with President Donald Trump’s administration over its rapid-fire and sweeping efforts to sidestep federal regulations on oil, gas and coal development.
The preparations will pose a test for the Trump administration’s strategy since January of relying mainly on emergency authorities and executive orders to slash what it views as obstructions to a surge in fossil fuel energy production.
In the last two weeks, Trump issued an executive order directing agencies to sunset every existing energy regulation by next year and, in a separate memorandum, said those agencies may repeal certain regulations without allowing the public to weigh in.
Federal officials have also notified companies that they can seek exemptions to clean air regulations via email, exempted dozens of companies from mercury and air toxics limits, fast-tracked a controversial oil pipeline tunnel in the Great Lakes, and dispensed with a court-ordered environmental review of thousands of oil and gas leases on federal lands.
Those actions test existing law, attorneys and policy experts said, including the provisions of the Administrative Procedure Act of 1946 that require agencies to publish notices of proposed and final regulations and allow the public to comment on them.
“They really are kicking it into high gear now,” Dan Goldbeck, director of regulatory policy at the conservative think tank American Action Forum, said in an interview. “They are trying to push some of these legal doctrines a bit to see if they can implement a new policy framework.”
Environmental group Earthjustice said it is hiring attorneys as it prepares to challenge some of Trump’s moves. The organization has 10 lawyer positions currently posted and wants to increase that amount substantially this year, adding to its existing stable of around 200 lawyers, it said.
Earthjustice and other groups say they want to be ready to sue once Trump’s agencies begin to implement his directives, including his order to sunset all federal energy regulations.
“President Trump’s proposal is almost comically illegal,” said Sambhav Sankar, Earthjustice senior vice president for programs. “If any federal agency actually tries doing this, we’ll see them in court.”
Waiting until the administration moves on Trump’s orders is key, though, according to the groups.
“We can’t sue over the president’s delusional thinking, but what we can do is sue when agencies try to implement that delusional thinking,” said David Bookbinder, director of law and policy at the Environmental Integrity Project (EIP).
The White House did not respond to a request for comment about the potential for legal challenges from environmental groups.
Last week, the Interior and Commerce Departments handed environmental lawyers a possible target when they proposed a rule that would allow agencies to permit projects that degrade the habitats of endangered species, EIP’s Bookbinder said.
“This is what, in some sense, we’ve been waiting for – not big pronouncements from the White House,” he said.
Challenging the two-year exemptions for coal-fired power plants from mercury and air toxics limits may prove harder, said Zach Pilchen, senior counsel at Holland & Knight, who served in both the first Trump and Biden administrations.
Trump relied on a provision of the Clean Air Act passed by Congress in 1990 that enables the president to exempt certain sources for national security reasons or if mitigating technology is not available.
“This is uncharted territory here,” Pilchen told Reuters. “That provision has never been tested and it could be somewhat difficult to bring a challenge in court.”
He said that among other things, the Clean Air Act has a judicial review provision governing lawsuits over actions by the Environmental Protection Agency administrator, but it does not specifically mention actions by the president.
Earthjustice’s Sankar said his organization expects to have to challenge the administration’s actions repeatedly over the coming years. He pointed to the government’s resistance to a U.S. Supreme Court order that it facilitate the return of a Salvadoran man mistakenly deported and now being held in a notorious prison in El Salvador.
“Normally in impact litigation, once you win a case, the government changes its behavior in other similar cases to comply with the precedent,” said Sankar, adding that he did not expect the administration to follow precedent anymore.
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