Congress

An overeager legal strategy may endanger Trump’s energy goals

In haste to pass its “energy dominance” agenda, the administration has suffered dozens of losses in court

Chairman Lisa Murkowski, R-Alaska, and ranking member Sen. Joe Manchin, D-W.Va., are seen before a Senate Energy and Natural Resources Committee hearing in Dirksen Building on “electricity sector in a changing climate” on Tuesday, March 5, 2019. (Tom Williams/CQ Roll Call file photo)

Sen. Lisa Murkowski was unhappy with an April 5 ruling by Sharon Gleason, a federal judge in Anchorage, Alaska, who found that President Donald Trump had unlawfully lifted a ban prohibiting drilling in the Arctic Ocean, dealing the president’s fossil-fuel energy agenda a major blow.

“I strongly disagree with this ruling,” said Murkowski, who wants to open her state’s land and water to increased oil and gas leasing. “I expect this decision to be appealed and ultimately overturned.”

If the past is any indication, the Alaska Republican may be disappointed.

In the 28 months since Trump became president, his administration has worked with zeal and speed to slash, dilute and tweak the environmental protections of previous administrations, frequently with the support of Republicans in Congress and industry groups that stood to gain.

To achieve his administration’s “energy dominance” agenda, the president has nominated industry-friendly officials to run Cabinet agencies, signed a raft of executive orders in support of oil, gas and coal companies rather than work with Congress to change the law, and overseen a governmentwide rollback of environmental regulations.

And in their haste, the White House and federal agencies have suffered dozens of losses in court, often by failing to follow standard federal procedures, submitting shoddy paperwork and, according to federal judges, arbitrarily interpreting the law.

“I think that they’re just ham-handed,” Holly Doremus, an environmental law professor at the University of California, Berkeley, said in an interview.

Much of the administration came into government without much expertise and with plenty of contempt for the career legal staff in Washington, Doremus said. “They came in with this idea that the Deep State was out to get them,” she said. “They came in not knowing anything but not understanding that that mattered.”

An Interior Department official said the administration is fine-tuning its efforts to strip away unnecessary regulations, and cited the Obama administration for faulty rulemaking of its own.

“We’re happy to clean up the legal errors of the previous administration identified by the courts and their inability to appropriately account for climate change in their decisions,” said Assistant Secretary for Land and Minerals Joe Balash. “Court rulings have allowed us to fine-tune our NEPA analysis in advancing the president’s energy agenda,” he said, referring to the National Environmental Policy Act.

In her ruling, Gleason said Trump’s executive order that lifted drilling bans in the Arctic was “unlawful” — the latest in a string of court losses for the government. The move placed about 120 million acres worth of Arctic waters and several million in the Atlantic Ocean back under federal protection, as they had been until Trump issued a 2017 executive order to roll back the ban.

On March 28, a federal judge in Colorado ruled the Bureau of Land Management and the U.S. Forest Service violated the National Environmental Policy Act, which requires government agencies to complete environmental assessments, in approving potential oil and gas projects in western Colorado.

The government failed to look at the climate effects of those proposals and “acted in an arbitrary and capricious manner,” Lewis T. Babcock ruled.

NEPA snags

A week before, Rudolph Contreras, a federal judge in Washington, D.C., struck down environmental reviews the Interior Department completed in connection with oil and gas lease sales in Wyoming. His ruling was also over NEPA violations.

“Simply put, NEPA required more robust analyses of GHG emissions from oil and gas drilling and downstream use,” Contreras wrote.

And in a separate case last week, Gleason, the Alaska judge, blocked a road project in the state’s southwest. The Obama administration has opposed putting a road through the Izembek National Wildlife Refuge, citing irretrievable damage to the ecosystem, conclusions that Gleason ruled the Trump administration “ignored.”

The Institute for Policy Integrity, a program within New York University’s School of Law, tracks the administration’s deregulatory efforts, including lawsuits and rule proposals.

The administration has succeeded in about 6% of those efforts, according to the group’s latest figures, from early March. Past administrations won similar legal fights about 70% of the time, Ricky Revesz, the group’s director, said in an interview.

“It’s a really atrocious record,” Revesz said.

He said many of the court losses can be tied to a conundrum for the administration: If they complete scientific and thorough analysis to justify what they want to do, that work will show why their goal is harmful to the public. But if they complete haphazard analysis, judges will see through it.

“So they’re caught between a rock and a hard place,” Revesz told CQ. “I think in some cases there is not good analysis that they could do, so they resort to bad analysis.”

Despite the legal stumbles the president continues to encounter, Republicans in Congress see no need for the administration to slow or change its techniques.

Instead, they place blame on “activist judges” and unclear bedrock environmental laws like the National Environmental Policy Act, the Endangered Species Act and the Clean Air Act that require the government to assess the environmental impact of energy projects.

Sen. Steve Daines, R-Mont., commended Trump for “bold leadership” on energy issues, saying instead he is concerned about the judges standing in the president’s way.

Keystone

“We had a judge stop the Keystone [XL] Pipeline in Montana, and that’s why it’s important for him to move forward with putting judges in place who understand their role is not to make the law but to interpret the law to make sure it supports the constitution,” Daines told CQ. “And so these activist judges need to be challenged.”

“There are opportunities for us to make these laws better,” Daines said. “But I’m very proud of what the president has done with his leadership to move America to a place of global energy dominance that is good for our national security, good for our economy.”

After years of setbacks, Trump’s State Department awarded TransCanada Corp. the cross-border permit the company had been denied by the Obama administration to move forward with its Keystone XL Pipeline.

But even with the green light from the Trump administration, the pipeline project still hit legal snags. A judge at the U.S. District Court for the District of Montana in November issued a temporary injunction blocking construction, accusing the State Department of failing to consider the project’s impact on climate change or vulnerable animal species, as NEPA and the Endangered Species Act require.

On Friday, Trump issued a new permit for the Keystone project and revoked a previous permit of his for the project as well as an executive order he signed days into office in support of the project.

It is unclear if the attempt to circumvent Brian Morris, the federal judge in Montana who blocked the pipeline in November, ruling that the State Department’s environmental assessment “fell short” of a “hard look,” will succeed. Construction of the pipeline was announced in 2008.

In the first two years of the Trump administration, when Republicans controlled both chambers of Congress, they moved multiple bills to weaken NEPA and the Endangered Species Act. They wanted to make it easier to explore on federal lands and quicken federal approvals of pipelines. Judges apply those laws arbitrarily and hamper energy development, Trump supporters contend.

During his time as chairman of the House Natural Resources Committee, Rep. Rob Bishop, R-Utah, pushed through several bills that would ease the stringent environmental review requirements. He is now ranking member of the committee.

“If we can clarify the rules and laws in the first place, it would be good,” Bishop told CQ. “We need to take, NEPA for example, which is probably the hit most people are taking, and clarify it. It’s an open invitation to a lawsuit because the law is simply a vague law.”

Bishop said the Trump administration is pursuing its goals of boosting energy exploration “the right way,” but that the judges throwing out those projects are in the wrong.

“I’m frustrated that many of the court decisions, I think, are small-minded and inaccurate and of course over time they’re going to be overturned,” he told CQ. “If you court-shop, you can find a judge that will disagree, which is unfortunate; it’s unfortunate the judicial branch of government is trying to take control of what should be a legislative-slash-executive process.”

Three years into the Trump era, the administration does not seem to be charting a different legal course.

In August, Ann Carlson, an environmental law professor at the University of California, Los Angeles, noted that the administration had lost four high profile environmental cases in the previous eight days. That spate, which included defeats over the Keystone XL pipeline, a toxic pesticide, water regulations and safety rules for chemical plants, followed a slew of losses “over the past 18 months,” she wrote.

Details and substance

“To some degree, the mounting losses for the Trump Administration involve its failure to follow proper administrative process,” Carlson wrote on a legal blog hosted by the University of California, Berkley, and UCLA. “But many of the cases cast doubt not just on the procedure but also the substance of the underlying actions: for example, the government lost the pesticides case this week because it had no justification for allowing pesticide residue to remain on food.”

In an email Tuesday, Carlson said she hadn’t noticed a significant shift.

“So far, I don’t see that the Administration has changed its tactics much at all since I wrote my column,” she said.

The EPA under Andrew Wheeler seems to be following legally dubious strategies, just as it did under Scott Pruitt, Trump’s first EPA administrator, she said.

In its attempts to undermine Obama-era rules on mercury and carbon pollution, the agency seems to be pursuing shaky legal paths, she said. The same goes for its work to revoke California’s waiver to issue its own automobile emissions standards, according to Carlson. “If it does so, the administrative record is full of errors and weaknesses that are likely to doom those legal efforts as well,” she said.

The Administrative Procedure Act, a 1940s law that guards against arbitrary government shifts, is proving to be quite the tripwire, too.

John Echeverria, an environmental law professor at Vermont Law School, said meeting APA standards is not difficult.

“It’s not that demanding a test,” he said by phone. “Fundamentally, the administrative law demands that agencies produce a reason for a new policy direction.”

It will take time to tell if the administration has changed its tactics, he added. “If they’re doing a better job, the payoff will be a long time coming.”

Pennsylvania Attorney General Josh Shapiro, a Democrat, said in a recent CQ interview that he’s selective when suing Trump.

“If I sued the president every time I disagree with him, I’d sue him a thousand times in his first year in office, when in fact I sued him just under a dozen times. So I focus on the rule of law, and the proof of that is we haven’t lost,” Shapiro said.

Under Wheeler, the EPA has been better at telling the public what it plans to do, as the APA requires, he said.

“What they still struggle with is how their rules are arbitrary and capricious under the APA,” Shapiro said. “And in fact we’ve sued under that provision and made comments under that provision even under Wheeler.”

David Bookbinder, chief counsel of the Niskanen Center, a centrist policy think tank, told CQ the full coal-generated steam-ahead method seems to be a play for the Trump base.

“I think it’s simply to stand up and throw meat to the crowds,” he said.

Reached at his home in Anchorage, Erik Grafe, who argued in court against the government in the Arctic offshore case, said breaking standard procedural laws deprives citizens of what they deserve to know.

“A lot of these statues are about disclosing to the public the risk,” Grafe said. “This administration isn’t doing that.”

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