In his first term, Donald Trump took a legal ax to former President Barack Obama’s climate and energy initiatives. He missed his target plenty of times, but environmental groups are girding for a second round.
Court watchers expect the president-elect to try to unwind four years of the Biden administration’s aggressive environmental and energy rules soon after taking office. One of Trump’s first stops on that journey will be in federal court.
“It’s an earthquake,” said Michael Gerrard, head of Columbia University’s Sabin Center for Climate Change Law. “We just don’t know where on the Richter scale it lands.”
Trump’s Department of Justice is expected to seek immediate stays of federal litigation to allow time to develop his administration’s new position in those cases. He will also likely issue executive orders signaling policy changes ahead, legal experts said.
Rollback targets could include rules on everything from corporate disclosure mandates for greenhouse gas emissions, to federal limits on climate pollution from the oil, gas and power sectors. The new administration may also revisit the White House Council on Environmental Quality’s regulations governing implementation of the National Environmental Policy Act, along with pollution limits for heavy-duty trucks.
In addition, Trump has pledged to stop what he’s called a “wave of frivolous litigation from environmental extremists.” And he’s expected to again seek to bar California from imposing the nation’s strictest pollution controls on vehicles.
Still, legal analysts say Trump’s efforts are not guaranteed to succeed — even with a judiciary rich with his appointees.
“It really does depend case-by-case, on what are the facts of the case, where are they procedurally, how entrenched is the case,” said Ivan London, senior attorney at the Mountain States Legal Foundation.
Trump’s attorneys will also have to contend with the Biden administration’s explanations for its rules, and offer reasons for changing the government’s position in litigation, he said.
Although the first Trump administration tried to roll back dozens of regulations, it did not have a high success rate in court, said Dan Farber, faculty director at the University of California, Berkeley’s Center for Law, Energy & the Environment.
“Earlier they got reversed because they were sloppy,” Farber said. Although the administration may have taken notes from those defeats, he continued, it could also be that in his second term, “Trump will value fealty over competence.”
Steve Milloy, a lawyer who served on Trump’s EPA transition team in 2016, has said that the president-elect learned important lessons during his first four years in office and that green groups could end up in “litigation traps” aimed at getting cases before the conservative supermajority at the Supreme Court.
“Trump 2.0 will be a little smarter than Trump 1.0,” he said.
Climate lawsuits
On the campaign trail, Trump said he would work to quash a raft of lawsuits that seek to hold oil and gas companies financially responsible for the effects of climate change — a fight that could potentially cost the fossil fuel industry billions of dollars.
The Supreme Court has already provided a potential opportunity for Trump to kill the cases. The justices last month asked the Biden administration for its opinion on whether the court should greenlight an effort by Republican state attorneys general to block their Democratic colleagues from suing the industry.
The court did not set a deadline for a response. The solicitor general typically replies within six months, a timeline that could extend into the next Trump administration.
“There’s no legal rule that gives the Trump administration any power over how these cases are decided,” Farber said. However, he continued, “you’d certainly rather have the feds on your side than on the other side.”
The Biden administration has backed the climate liability lawsuits, and Farber said he expects DOJ will try to get its views on the record before the White House changes hands.
Oil companiess have also asked the justices to overturn a Hawaii Supreme Court decision that moved a climate liability lawsuit filed by Honolulu closer to trial. The justices in June asked the Biden administration to give its opinion on the matter.
DOJ has not yet responded, but could do so before January.
SEC climate rule
The Securities and Exchange Commission’s corporate disclosure requirements related to climate change are a likely target for reversal in the new Trump era.
The SEC approved the landmark climate disclosure rule in March, requiring public companies to provide investors with information about their climate plans and risk. The SEC voluntarily put the rule on ice a month later, after a flurry of legal challenges from Republican-led states and business groups that claimed the regulation would impose an “extraordinary burden” on companies to comply.
Those cases are now pending in the 8th U.S. Circuit Court of Appeals and could be dropped if Trump’s SEC rescinds the rule.
But even if the Trump administration repeals the SEC requirements, companies doing business in California are still subject to the state’s climate disclosure rules, said attorneys with the securities and capital markets division at the law firm Harter Secrest & Emery.
“There is a good bit of uncertainty here that may be challenging for companies to manage as they prepare their budgets for next year,” the firm said.
Power plant rule
The Trump administration is expected to try to reverse course — again — on EPA limits on climate pollution from new gas- and existing coal-fired power plants.
While the Supreme Court had frozen the Obama-era Clean Power Plan before Trump first took office in 2017, giving EPA space to develop the 2019 Affordable Clean Energy rule, this time around, the justices have already declined to put Biden’s rule on ice.
And the U.S. Court of Appeals for the District of Columbia Circuit has scheduled oral argument in the litigation over Biden’s regulation for Dec. 6, nearly two months before Trump returns to the White House.
Although some legal analysts said it would be an uphill battle because courts have already denied a stay and the case is so far advanced, the Supreme Court may be persuaded to intervene once Trump takes office, said James Coleman, a law professor at the University of Minnesota.
The new administration “might want to be on the record as soon as possible” with its critiques of the Biden rule, Coleman said.
He added: “You’d have a stronger case if you had the solicitor general also saying, ‘This is having an immediate impact on industry.'”
Methane rule
Trump lawyers might face similar challenges persuading the D.C. Circuit to freeze the Biden EPA’s limits on methane emissions from the oil and gas sector.
The federal appeals court and the justices have already declined requests from red states and industry groups to halt the regulation, which requires operators to use efficiency improvements and technological fixes to slash emissions of the potent greenhouse gas from new and existing oil and gas infrastructure.
Sean Donahue, a private attorney who is representing the Environmental Defense Fund in both the power plant and methane rule cases, said it is important to keep the regulations on the books.
“The public health and environmental protections that the rules offer are really important,” he said, “and efforts to undo them or stay them would come at great cost, and we would oppose that.”
While the presidential election is a big deal politically, “it doesn’t change the facts about the pollution and people’s health, and it doesn’t change what the statutes say,” he continued. “We’re going to continue to press those themes that are our core objectives.”
Pushback from Dems, enviros
Blue states are already preparing to play a central role in fighting Trump’s anti-regulatory agenda in court.
Democratic state attorneys general filed 160 lawsuits against the first Trump administration, according to data compiled by Paul Nolette, director of Marquette University’s Les Aspin Center for Government. They won 83 percent of those cases, most of which were led by then-California Attorney General Xavier Becerra and current New York Attorney General Tish James.
Mike Davis, a Trump ally and contender to be the next U.S. attorney general, has already threatened James with imprisonment if she continues to target Trump.
“Listen here, sweetheart,” Davis said last week on a conservative podcast, addressing James. “We’re not messing around this time, and we will put your fat ass in prison for conspiracy against rights. I promise you that.”
A day later, Davis wrote on the social platform X that he was not under consideration for attorney general and did not speak for Trump.
If Trump’s DOJ tries to change course in the middle of pending litigation, the administration is likely to encounter opposition from environmental groups, states and other parties that have intervened to defend Biden rules, said Sam Sankar, head of litigation at Earthjustice.
“They have to articulate a logical reason for doing so,” Sankar said. “I think it will be easier for states and NGOs like Earthjustice to push back on positional changes in cases that are already in litigation, where the government has already staked out its litigation position.”
“It will be harder for states and NGOs to push back down the road when things are coming up brand new,” he added.
The Center for Biological Diversity, which frequently tussled with the first Trump administration in court, pledged to wage “twice the fight” over the next four years.
“We’ve battled Trump from the border wall to the Arctic Wildlife Refuge, and in many cases we’ve won,” said Kierán Suckling, the group’s executive director. “This country’s bedrock environmental laws stand strong. We’re more prepared than ever to block the disastrous Trump policies we know are coming.”
This story also appears in Climatewire.
