Trump's Enviro Law Impact May Not Be What Many Anticipate

Author:Mr Lester Sotsky and Andy T. Wang
Profession:Arnold & Porter Kaye Scholer LLP
 
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Many posit a material decline in environmental enforcement and a retrenchment or reversal of environmental regulatory initiatives in the new Trump administration. Certainly, one would be prudent to consider that scenario and its implications, given the repeatedly expressed intentions to do just that, by both the president and his team before and after his inauguration.1 We believe there are three concrete areas where activism and activity will be on the rise during the Trump administration, targeting a variety of environmental, public health and liability issues of considerable potential consequences to the regulated community, environmental practitioners and the public at large.

Specifically, we postulate that the next four years will see a significant increase in (1) litigation by environmental groups, (2) regulatory enforcement and other actions by multiple states, and (3) efforts by the plaintiffs bar to capitalize on what may be perceived broadly as a withdrawal of the federal government from engagement on matters of environmental protection and public health. Each of these forms of prospective activism is addressed below.

Litigation by Environmental Groups

Environmental nongovernmental organizations (ENGOs) have long established themselves as key players in matters of environmental public policy, regulation and enforcement. The successes of their efforts are far too numerous to count and too diverse to categorize summarily. At all levels of government, ENGOs have prevailed in litigation that has forced agencies to regulate, overturned permitting decisions, and enforced compliance against those in violation of environmental laws and regulations.2 During the Trump administration, we would expect the ENGOs to focus their considerable fire power — with renewed vigor enhanced by growing memberships and contributions3 — in three discrete areas.

First, there is the well-traveled path of using the courts to obtain review and rejection of U.S. Environmental Protection Agency regulations deemed nonconforming with statutory mandates. Specifically, any number of the environmental "rollback" initiatives discussed publicly to date by those associated with the new administration or their allies in Congress will require the EPA to go through rulemaking under the Administrative Procedure Act.4 More specifically, to rescind or amend many existing regulations, including those promulgated in the waning days of the Obama administration, rulemaking will be necessary.5 Those rules will, in turn, be subject to judicial review.

Many, though not all, EPA regulations or rulemakings are subject to judicial review before the D.C. Circuit. Its present political composition is seven active judges appointed by Democratic presidents and four active judges appointed by Republican presidents. Litigious ENGOs can thus anticipate a reasonable possibility of drawing a receptive three-judge panel when seeking to overturn Trump administration regulations that appear to the ENGOs to relax current standards, withdraw recent initiatives or otherwise make life easier for the regulated community at the expense of the environment, unless the administration can demonstrate, on the record, that its new policies are not arbitrary or capricious.

Making that demonstration, however, will take time (i.e., to amass a supportive administrative record), which may be contrary to the president's style and methods to date, in which the deliberative process is eschewed in favor of speed. (For example, the president's controversial ban on immigration from several predominately Muslim countries has been criticized not just on substantive/policy/legal grounds, but for the administration's failure to (1) consult with key congressional leaders of its own party; (2) provide advance notice to its own top intelligence, U.S. Department of Homeland Security and U.S. Customs and Border Protection officials; and (3) take due care to draft an executive order with sufficient care, clarity and details).6 We predict that...

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