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Shared from the 9/24/2020 The Denver Post eEdition

DEREGULATION CHALLENGES By Lisa Friedman and John Schwartz
© The New York Times Co

WASHINGTON» Shared from the 9/24/2020 The Denver Post eEdition

DEREGULATION CHALLENGES By Lisa Friedman and John Schwart© The New York Times Co.

WASHINGTON» President Donald Trump has initiated the most aggressive environmental deregulation agenda in modern history, but as his first term drives to a close, many of his policies are being cut down by the courts — even by Republican-appointed jurists who the administration had hoped would be friendly.

Those losses have heightened the stakes in the election and the fight over a replacement on the Supreme Court for Justice Ruth Bad-er Ginsburg: A second term, coupled with a 6-3 conservative majority on the high court, could save some of his biggest environmental rollbacks.

 Since January courts have dealt a series of blows to the Trump administration’s plans to ramp up fossil fuel development and undo decades of environmental protections. Last Thursday, a federal appeals court temporarily blocked implementation of a major rollback of methane emissions standards for the oil and gas industry while it considers permanent action. That followed decisions by judges that have thrown the future of the Dakota Access Pipeline into doubt, struck down the relaxation of protections for migratory birds and vacated the rollback of an Obama-era rule to reduce waste from natural gas flaring on federal lands.

Five recent unfavorable rulings came from Republican-appointed judges, including a 6-3 clean water decision in April by the Supreme Court with Ginsburg in the majority. A panel of three judges appointed by Trump unanimously overturned a policy that would have suspended hefty new penalties for automakers who failed to meet fuel efficiency standards.

According to a database kept by New York University’s nonpartisan Institute for Policy Integrity, the Environmental Protection Agency has won only nine of 47 court cases under Trump, while the Interior Department has won four of 22. The Trump administration’s overall win rate hovers just under 16%, the group said, compared with win rates of about 70% for the Obama and Bush administrations.

But the courts have in most cases given the administration an opportunity to go back and revise their work.

The future of those rules may then rest on whether Trump is re-elected, with a 6-3 conservative majority on the Supreme Court ready to hear his fresh attempts.

“If there is a second Trump administration, they may have time to go back and do it right,” said Michael B. Gerrard, the director of the Sabin Center for Climate Change Law at Columbia Law School.

Trump administration officials and supporters dispute the institute’s statistics and contend they have obtained mostly favorable outcomes. On Sept. 11, for example, the U.S. District Court for the Western District of Virginia declined to block the Trump administration’s overhaul of the National Environmental Policy Act from taking effect, pending an ultimate decision on the legality of the regulatory changes.

But even conservative legal scholars said the mounting losses are impossible to ignore.

“There is a sense that the administration has been in a hurry and has been sloppy,” said Jonathan H. Adler, a conservative legal expert and professor of environmental law at Case Western Reserve University in Cleveland.

Courts have yet to rule on Trump’s biggest rollbacks of clean water rules, curbs to greenhouse gas emissions in automobiles and power plants and environmental reviews of infrastructure projects. But activists and Democratic attorneys general expressed confidence that judges would find the unwinding of even those environmental protections illegal, despite the work that went into them.

Early in the administration, a number of courts ruled that agencies acted illegally by providing little or no justification when they rewrote, weakened or repealed regulation.

Now courts are increasingly telling the EPA and Interior Department that their legal, scientific and economic analyses upholding rollbacks directly violate underlying laws.

Some of the decisions have been scathing.

“It is not only a sin to kill a mockingbird, it is also a crime. That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence,” Judge Valerie Caproni of U.S. District Court for the Southern District of New York wrote in an August ruling that blocked the Trump administration’s relaxation of protections for migratory birds.

In a statement, the Interior Department said it still intended to move forward with a final rule on the changes.— even by Republican-appointed jurists who the administration had hoped would be friendly.

Those losses have heightened the stakes in the election and the fight over a replacement on the Supreme Court for Justice Ruth Bad-er Ginsburg: A second term, coupled with a 6-3 conservative majority on the high court, could save some of his biggest environmental rollbacks.

Since January courts have dealt a series of blows to the Trump administration’s plans to ramp up fossil fuel development and undo decades of environmental protections. Last Thursday, a federal appeals court temporarily blocked implementation of a major rollback of methane emissions standards for the oil and gas industry while it considers permanent action. That followed decisions by judges that have thrown the future of the Dakota Access Pipeline into doubt, struck down the relaxation of protections for migratory birds and vacated the rollback of an Obama-era rule to reduce waste from natural gas flaring on federal lands.

Five recent unfavorable rulings came from Republican-appointed judges, including a 6-3 clean water decision in April by the Supreme Court with Ginsburg in the majority. A panel of three judges appointed by Trump unanimously overturned a policy that would have suspended hefty new penalties for automakers who failed to meet fuel efficiency standards.

According to a database kept by New York University’s nonpartisan Institute for Policy Integrity, the Environmental Protection Agency has won only nine of 47 court cases under Trump, while the Interior Department has won four of 22. The Trump administration’s overall win rate hovers just under 16%, the group said, compared with win rates of about 70% for the Obama and Bush administrations.

But the courts have in most cases given the administration an opportunity to go back and revise their work.

The future of those rules may then rest on whether Trump is re-elected, with a 6-3 conservative majority on the Supreme Court ready to hear his fresh attempts.

“If there is a second Trump administration, they may have time to go back and do it right,” said Michael B. Gerrard, the director of the Sabin Center for Climate Change Law at Columbia Law School.

Trump administration officials and supporters dispute the institute’s statistics and contend they have obtained mostly favorable outcomes. On Sept. 11, for example, the U.S. District Court for the Western District of Virginia declined to block the Trump administration’s overhaul of the National Environmental Policy Act from taking effect, pending an ultimate decision on the legality of the regulatory changes.

But even conservative legal scholars said the mounting losses are impossible to ignore.

“There is a sense that the administration has been in a hurry and has been sloppy,” said Jonathan H. Adler, a conservative legal expert and professor of environmental law at Case Western Reserve University in Cleveland.

Courts have yet to rule on Trump’s biggest rollbacks of clean water rules, curbs to greenhouse gas emissions in automobiles and power plants and environmental reviews of infrastructure projects. But activists and Democratic attorneys general expressed confidence that judges would find the unwinding of even those environmental protections illegal, despite the work that went into them.

Early in the administration, a number of courts ruled that agencies acted illegally by providing little or no justification when they rewrote, weakened or repealed regulation.

Now courts are increasingly telling the EPA and Interior Department that their legal, scientific and economic analyses upholding rollbacks directly violate underlying laws.

Some of the decisions have been scathing.

“It is not only a sin to kill a mockingbird, it is also a crime. That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence,” Judge Valerie Caproni of U.S. District Court for the Southern District of New York wrote in an August ruling that blocked the Trump administration’s relaxation of protections for migratory birds.

In a statement, the Interior Department said it still intended to move forward with a final rule on the changes.

 

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