President Obama’s environmental agenda hangs in the balance as federal courts consider whether his administration overstepped its authority in drafting a host of regulations designed to combat pollution and climate change.
The rules under attack range from standards for hydraulic fracturing to carbon dioxide limits for power plants, and fulfill various promises the Obama administration has made.
It’s now up to a select group of judges — many appointed by Republican presidents — to shape Obama’s environmental and climate legacy by deciding if the regulations pass legal muster.
“We are certainly in a moment where in relatively short order, a lot could be unraveled,” said Justin Pidot, an environmental law professor at the University of Denver who served as a litigator in the Justice Department from 2008 to 2011.
Obama has made it clear that the climate and other environmental policies would be a second-term priority for him and part of what he hopes to define his presidency. But the courts could throw a wrench in those plans.
The latest regulation to face court scrutiny is the Environmental Protection Agency’s (EPA) new limits on ground-level ozone pollution.
Numerous states and business interests filed lawsuits challenging it in the days after its Oct. 26 publication in the Federal Register, putting the matter before the Court of Appeals for the District of Columbia Circuit.
The influential D.C. Circuit, which generally has jurisdiction over regulations, and other federal courts are also mulling over the carbon dioxide limits for existing and newly built fossil-fuel-fired power plants, regulations defining which streams and wetlands are subject to the EPA’s authority and Interior Department standards for hydraulic fracturing for oil and natural gas on federal land.
The latter two rules have been blocked by courts while they consider the cases.
The D.C. Circuit is also working through how to enforce the Supreme Court’s decision earlier this year that the EPA did not properly account for the costs of its landmark limits on mercury and other toxic air pollutants from power plants.
The administration’s allies and foes agree that the confluence of litigation is likely a result of officials trying to finish major rules in the waning days of Obama’s presidency.
“I don’t think it is surprising that this is happening,” said Pidot, who generally feels that the major regulations being challenged fit squarely into the authorities Congress has provided the executive branch. “It’s also not surprising that toward the end of an administration, you end up with a lot of rules in litigation.”
William Yeatman, a senior fellow at the conservative Competitive Enterprise Institute, suggested that the timing of the high-stakes court fights also has something to do with political strategy.
“Most presidents who want to make their mark through the regulatory state are going to cram all their big, controversial ones in the second term, when they don’t face any electoral accountability,” said Yeatman, whose group is likely to participate in the litigation against the climate rules. “The timing is a byproduct of that.”
But the outcome of the challenges is a different matter.
To conservatives, the courts represent the best hopes of overturning what they see as illegal regulations, since it is extraordinarily difficult for even a GOP-controlled Congress to overcome Obama’s veto pen.
Hubbel Relat, vice president for state policy at the American Energy Alliance, said the Supreme Court, where many of the cases are likely to end up, has shown recently that it is growing tired of giving Obama wide discretion when it comes to executive authority.
“The court clearly expressed a serious concern with the deference that the EPA, and more broadly the Obama administration, is claiming with their actions,” Relat said. “They’ve been amazingly bold in asserting deference in their decisions to kind of make up laws as it suits them politically.”
Pidot said the outcome is highly dependent on a number of factors, including the rules themselves.
“In the last few years, the Supreme Court has taken up several cases involving EPA rules, and the agency has done OK, but not great,” he said.
The Obama administration, meanwhile, consistently says it is confident in the legality and constitutionality of its regulations.
The main responsibility for defending the rules will fall to the Justice Department’s natural resources division, led by John Cruden, an assistant attorney general.
At a recent conference in Chicago, Cruden, commenting specifically on the carbon rules, said his staff is up to the task.
“We have now a team of lawyers that were designated from early on, were watching all of this,” he said, according to Greenwire. “We were prepared to go right away.”
Pidot said the division, where he used to work, is the best possible team to take on opponents of the regulations.
“The environmental lawyers at the Department of Justice are some of the best lawyers in the country. They know these issues backwards and forwards.” he said. “If anyone can ably defend these rules, I’d put my money on that set of lawyers.”
But Yeatman warned that the current Justice Department leadership might not be the ones responsible for representing the government in these disputes. Since Obama’s term will end in January 2017, the next president might oversee the cases.
“The next administration, if it has different goals than the Obama administration, can affect the resources it puts into such a lawsuit,” he said, calling that dynamic “one of the more underappreciated factors” in the cases.