President Donald Trump’s words may come back to haunt him in court as he moves to roll back regulations that fight climate change, just as they did when he tried to ban travel from six predominantly Muslim countries.
Environmentalists are scrutinizing Trump’s tweets and the phrasing of presidential orders, looking for evidence that an action is driven by politics or that a review of regulations is being carried out with a specific outcome in mind. That could be used in a lawsuit to argue that the process is a sham and violates federal law governing rulemaking.
“If there’s anything that suggests that it’s a politically motivated decision instead of a rationally based decision, that’s always something we put before the court,” said Abigail Dillen, vice president of litigation for climate and energy at Earthjustice. “Explosive statements” in a White House order “can and will be used against them,” she said.
As recent rulings on Trump’s travel order illustrate, intent matters. A federal judge in Hawaii halted Trump’s latest restrictions after concluding past comments by the president and associates showed the policy was designed to disfavor Muslims. While courts shouldn’t examine the “secret motives” of government decision makers, the judge wrote, the clear facts in that case “require no such impermissible inquiry.”
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A handful of energy industry lobbyists have counseled the White House to be cautious. They are advising the administration to dial back its planned executive order targeting Obama’s plan to slash greenhouse gas emissions from power plants — lest the White House arm critics with legal fodder for later court challenges. With the administration weighing plans to undo other Obama-era environmental protections, a stray tweet or promise at a presidential rally may turn up in court filings to defend the earlier regulations.
Some damage may already be done. Trump famously called climate change a hoax perpetrated by the Chinese in a 2012 tweet. And he vowed to repeal carbon rules for power plants as part of a broader effort to reverse environmental regulation and save jobs.
The administration will turn the Environmental Protection Agency “from a job killer into a job creator,” Trump told a crowd in Kentucky this week, promising to save coal-mining jobs. “We’ve wiped out many, many unnecessary regulations and that’s just the beginning.”
EPA Administrator Scott Pruitt also discounted the role of carbon dioxide as the main driver of climate change earlier this month. Those climate comments could be used by opponents if the EPA decides to reverse its landmark 2009 determination that greenhouse gas emissions endanger the public health and welfare, said Joanne Spalding, a senior managing attorney at the Sierra Club.
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Generally, regulations can’t be killed with the stroke of the president’s pen. Instead the administration must undertake the same rulemaking process used to create regulations to undo them. And that process can’t be “arbitrary and capricious” — the bright line standard established in the 71-year-old Administrative Procedure Act that governs federal rulemaking.
In practice, that means agencies must provide a good explanation for rescinding a regulation — by demonstrating the factual, legal and policy justifications. They also must stick to the factors laid out in the legislation. For instance, that means they can’t weigh cost when determining how stringent to make ozone standards because the Supreme Court has unanimously found that those considerations weren’t in the original statute.
It’s permissible for a government official to announce the beginning of “a process that might lead to a change in policy,” said Richard Revesz, director of the Institute for Policy Integrity at New York University.
But, he said, it would be “very problematic” if the administration explicitly compelled officials to, say, lower the government’s metric known as the social cost of carbon., which estimates the effects of climate change.
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The issue could come up as soon as the Trump administration files papers designed to interrupt a federal court review of the Clean Power Plan. Not only are statements about the administration’s intent to undo the rule relevant to that effort, Spalding said, but so are Pruitt’s arguments in his prior role as Oklahoma attorney general that the EPA is precluded from regulating power plant carbon emissions.
Courts also have held that federal decisions can be disqualified if they were driven by regulators who have an “unalterably closed mind” on an issue. Regulators are allowed to have opinions, but courts maintain their actions are suspect if there is clear and convincing evidence an official’s mind is so strongly made up that all relevant public comments will be disregarded.
To be sure, Trump and Pruitt’s climate commentary isn’t a silver bullet for opponents seeking to maintain Obama-era environmental laws. Agencies can help insulate themselves from challenges by doing their homework and buttressing the administrative record with plenty of evidence to support a pivot in policy.
None of these statements are “eureka, gotcha moments” by themselves, said Sean Donahue, an attorney who has argued on behalf of the Environmental Defense Fund. “Most important of all is going to be what they do.” The weaker the record, the more likely those statements will come into play.
Citing statements in a legal filing “would be a weak case if the record showed a serious consideration and a balanced weighing of factors and a reasonable interpretation of the statute,” Donahue said.
EPA spokesmen did not respond to requests for comment.
Supporters say the Trump administration will be making good on its campaign promises by rolling back regulations the president sees as throttling domestic energy development. A White House directive to repeal climate rules is not all that different from when former President Barack Obama issued a 21-page climate action plan outlining plans to establish those rules, they say.
Rhetoric is “not indicative of a pre-ordained outcome,” said Stephen Brown, a lobbyist for Tesoro Corp. One could also divine intent from Obama’s statements, he said.
In fact, when Pruitt was representing Oklahoma, he argued just that point.
Oklahoma joined 13 other states to assert that Obama’s EPA administrator had already determined conclusively that the agency had the authority to issue its Clean Power Plan. At the time, that regulation hadn’t been finalized.
Pruitt and the other state attorneys general cited tweets by then-administrator Gina McCarthy pledging to reduce carbon dioxide emissions, and said that was evidence that the “agency has a ‘closed mind,’ and is engaged in a ‘sham’ rulemaking.”
In the end, that argument didn’t win the day. The case was tossed out when a three-judge panel decided there was no legal authority to review the regulation before it was final.