EPA braces for onslaught of lawsuits in 2019

The Environmental Protection Agency (EPA) is confident that its prospects in federal court are about to change for the better when it comes to fights over regulatory rollbacks.

Federal judges have frequently blocked the EPA’s attempts to implement President TrumpDonald John TrumpTrump directed Cohen to lie to Congress about plans to build Trump Tower in Moscow during 2016 campaign: report DC train system losing 0k per day during government shutdown Senate Republicans eye rules change to speed Trump nominees MORE’s aggressive deregulatory agenda by delaying or changing major environmental rules.

In the coming year, the EPA is expected to get sued over a slate of finalized repeals or rollbacks, mostly pertaining to Obama-era policies.

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“On procedural grounds, we have lost a number of the last year-and-a-half,” acting EPA chief Andrew Wheeler told The Hill in an interview this month. “And our goal is not to lose them going forward.”

Trump’s opponents, however, don’t see an end to their winning streak. Environmentalists and Democrats argue that the EPA is not living up to its statutory obligations, and they say federal courts are inclined to agree.

“We’re really alarmed by the climate and public health implications of all of those actions, and we see them as contrary to EPA’s mandate under the Clean Air Act, and in many cases, the record EPA has gathered in the past in supporting these standards,” said Tomás Carbonell, lead attorney at the Environmental Defense Fund, which has successfully sued Trump over previous rollbacks.

The first major round of litigation at the EPA next year is likely to start in late March. That’s when Wheeler hopes to release a final version of the Safer Affordable Fuel Efficient (SAFE) Vehicles Rule, the joint effort with the Department of Transportation to roll back fuel efficiency and greenhouse gas rules for cars made through 2026.

As proposed, the rollback would freeze standards in 2021, canceling out the plans to make them more stringent going forward.

The plan rests largely on the Trump administration’s argument that it would save 1,000 lives per year to stop the Obama administration’s standards — an estimate opponents say is critically flawed.

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“A lot of the people who are criticizing the 1,000 lives saved are some of the people that think we should only be looking at energy efficiency and not lives saved or safety factors,” Wheeler said.

It’s a near certainty that once the forthcoming rules are finalized — a step expected next year for many of the most consequential rollbacks — environmentalists and Democratic state attorneys general will take legal action.

That case and other EPA-related lawsuits could even make their way up to the Supreme Court, where two new Trump-nominated judges will help decide their fate.

The EPA has been dealt court losses, either in full decisions or in smaller orders, for various actions and inaction: deciding not to ban the pesticide chlorpyrifos; delaying its designation of which areas don’t comply with ozone pollution standards; postponing implementation of an Obama-era chemical plant safety rule; attempting to avoid enforcing pollution standards on certain heavy trucks; and delaying the Obama administration’s methane pollution rules for oil and natural gas drillers.

Wheeler said that writing legally defensible regulations has been an emphasis of his since he took over the agency following Scott PruittEdward (Scott) Scott PruittOvernight Energy: Wheeler weathers climate criticism at confirmation hearing | Dems want Interior to stop drilling work during shutdown | 2018 was hottest year for oceans Dems blast EPA nominee at confirmation hearing Dem senator expresses concern over acting EPA chief's 'speedy promotion' MORE’s resignation in July.

“That has been the overarching message that I’ve given to all of our political [appointees] here, is that I want to put forward regulations that will be upheld by the courts,” Wheeler said.

But Wheeler’s confidence also stems from the fact that the upcoming battles will be about the merits of the regulatory rollbacks, like the agency’s weaker replacement for the Clean Power Plan, its attempt to stop automobile emissions rules from getting more stringent and and redefinition of which waterways are subject to federal jurisdiction.

That’s in contrast to the procedural problems the EPA had before, which courts said the agency didn’t follow the right processes.

“A lot of those were procedural and they were regulatory actions to delay Obama regulations,” Wheeler said. “As we’re moving forward, we’re replacing those. I certainly hope and expect that those replacements will go through.”

Thomas Lorenzen, an attorney at Crowell & Moring LLP and a former lawyer in the Justice Department’s environment division, said the EPA could fare better going forward.

“You would think the procedural issues would be the easier ones, and the substantive issues would be harder ones for EPA to nail. But it turns out that’s exactly the opposite in this realm,” said Lorenzen, who has represented some of the companies and industry groups who support the rollbacks.

When it comes to the EPA’s final regulations, “they do have the deck stacked slightly more in their favor,” he said. “The standards of review tend to be deferential to executive authority.”

Lorenzen expects judges reviewing lawsuits against the EPA’s final rules to stick to judicial precedent that defers to agencies in areas of their expertise, like science or how far rules must go to protect public health.

“They are the experts on environmental protection, and the courts are not expected to second guess them unless there really is no substantial evidence that supports the agency’s view,” Lorenzen said.

But the groups likely to sue the EPA say the agency has crossed that threshold, and that judges will overturn those changes.

Many of those lawsuits will come from Democratic attorneys general like California’s Xavier BecerraXavier BecerraDem added to Ways and Means Committee amid desire for more Hispanic members Judge blocks Trump contraception rule in 13 states Overnight Health Care: Judge pauses ObamaCare appeal amid shutdown | Trump officials consider Medicaid block grants for states | HHS closing tent city for migrant teens MORE and Brian Frosh of Maryland.

“AGs are really uniquely situated to stop these rollbacks, because it’s their job to look out for the legal interests of all citizens in their states,” said David Hayes, executive director of the State Energy & Environmental Impact Center, a project housed in New York University and funded by former New York City Mayor Michael Bloomberg.

“They come to litigation with a real credibility and responsibility to look out for the public welfare of their citizens,” he added.

Hayes, who served as deputy secretary of the Interior Department during the Obama administration, predicted that the state attorneys general suing Trump will keep racking up victories.

“The rationale cited in these rulemakings really opens them up to challenges, and to me, likely successful challenges,” he said.

“In a number of cases, the agency is openly admitting that it’s focused almost entirely on the cost to industry for compliance,” he said, arguing that the EPA isn’t properly accounting for the environmental and health benefits being lost when a rule is weakened.