News•March 29, 2017

Justice Dept. Moves Swiftly to Back Trump Climate Order

The federal government is moving swiftly to implement President Trump’s executive order on climate change, taking steps that include lifting a moratorium on new coal mines and asking courts to suspend long-running legal disputes over power plant climate rules.

Environmental groups and the Northern Cheyenne Tribe of Montana responded with similar haste after Interior Secretary Ryan Zinke on Wednesday morning ordered an end to the moratorium on new coal mining on federal land, as called for in Trump’s order. They filed a lawsuit alleging the decision “opened the door” to new leases and impacts without a needed environmental review.

The Centralia Power Plant in Washington state burns coal, which is a target of Obama power plant rules.
Credit: Kid Clutch/Flickr

Trump’s climate order, which he signed on Tuesday, directs federal staff to examine and eliminate regulations and programs deemed burdensome to fossil fuel companies. The legal thoroughness of the order and coordinated federal efforts to implement it contrasted with bungled attempts to halt migration from some Muslim countries.

“They certainly thought through what they were and were not going to include,” said Ann Weeks, legal director at the nonprofit Clean Air Task Force, which plans to oppose Trump administration efforts to suspend the power plant court cases. “They took their time and they wrote it very carefully.”

Legal experts do not expect the executive order on climate to be successfully challenged in court, though it is likely to lead agencies to revoke rules in ways that could trigger a cascade of lawsuits.

The first high-profile effort by the Trump administration to make good on the president’s climate order came Tuesday evening, within hours of it being signed, when the Department of Justice filed papers seeking to halt two legal cases.

Both cases involve climate pollution rules affecting power plants. The Obama administration had been defending the rules against conservative states and energy companies with the legal support of environmental groups.

Obama’s power plant rules are targeted for elimination or weakening in Trump’s executive order. Federal lawyers on Tuesday asked courts to hold both cases in abeyance while the EPA conducts a fuller review of the rules.

Weeks and other environmental attorneys on Wednesday said they will oppose the move and ask for the court cases to continue. They want to defend the rules all the way to the Supreme Court, even without the support of the federal government.

Interior Secretary Ryan Zinke, pictured during a hearing in Washington earlier this month, moved quickly on Wednesday to implement parts of Trump's climate order.
Credit: REUTERS/Joshua Roberts

“It's an interesting gamble,” said Emily Hammond, a George Washington University Law School professor. “If the court upholds the rule, it will be even harder for the agency to revoke it — a true win. But if the court finds a flaw in the rule and vacates it, EPA won't need to go through the years-long process of revoking it.”

The professionally drafted climate order and its smooth rollout suggest environmental groups opposing the order face greater obstacles than groups that opposed Trump’s immigration ban.

“This EO [executive order] is much more sophisticated than the immigration EO,” said Danny Cullenward, a Carnegie Institution for Science researcher focused on climate policy. “On its face, it raises no obvious legal concerns.”

Some of the credit for what has so far been a smooth rollout of the climate order may belong to EPA Administrator Scott Pruitt, who sued the EPA more than a dozen times while serving as Oklahoma’s attorney general.

Politico reported that Pruitt held his ground in arguments with other conservatives and Republicans when the order was being crafted, arguing against the inclusion of more far-reaching measures — measures that could have been highly vulnerable to legal challenges.

Still, Weeks, the environmental attorney, pointed to similarities between the immigration order and the climate order that Trump’s legal opponents plan to try to seize upon.

“It does seem to be skewed toward revocation or rescission of various rules,” Weeks said. “It may suffer from the same flaws as the immigration order, in that it appears to have made judgment before the rulemaking process has been completed.”