By Bethany A. Davis Noll
February 11, 2021
The Biden administration has set a new tone for the federal government. Through a series of executive orders and memoranda, President Biden established a new Council of Advisors on Science and Technology, directed agencies across the government to prioritize science-driven actions to address the climate crisis, and instructed agencies to “make evidence-based decisions guided by the best available science and data.”
As agencies adjust to the new direction of the administration, there are two important trends on display: one with the agencies and the other in court. State attorneys general are playing key roles on both fronts, and in the midst of these shifts at the federal level, they continue their important work enforcing environmental statutes within their states, as outlined below.
The broad new direction provided by the Biden administration will be implemented at the agency level through proposed rules, which themselves provide significant opportunities for public input. These proposals have already begun to be released. Just this week, the U.S. Fish and Wildlife Service delayed the effective date of a Trump-era rule that had allowed more bird killings under the Migratory Bird Treaty Act. In the same notice, the agency also requested comment from the public on whether to rescind the Trump-era rule. The agency will be considering whether to rewrite the rule within the context of a pending lawsuit brought by a coalition of 12 attorneys general led by New York Attorney General Letitia James and a court’s rejection of the Trump administration’s prior attempt to adopt the same interpretation. We can expect to see similar movement on other Trump-era rules soon. Indeed, the Department of the Interior today announced a delay of the Trump-era rollback of the agency’s royalty reform rule. The Department of Energy has also already issued several delays.
There is also action in court. In multiple cases challenging Trump-era rules, agencies have asked for a pause to allow them time to decide whether to reconsider the challenged rules. For example, over an objection filed by intervenor states led by Ohio, the U.S. Court of Appeals for the D.C. Circuit granted the Biden administration’s request to pause litigation over the Trump administration’s revocation of California’s authority to set its own vehicle emissions standards. California’s authority had never before been revoked. With the change in administration, the authority could be restored relatively quickly. It does not make sense to waste time in court litigating a Trump-era policy that could be re-thought. The court also granted another request to pause litigation brought by California and the Environmental Defense Fund over the Trump-era decision to roll back standards for methane emissions from landfills. And a federal district court in Maryland granted the Biden administration’s request to pause the challenge to the Navigable Waters Protection Rule, the Trump administration’s rollback of federal Clean Water Act protections. These pauses afford agencies flexibility in rethinking the rules and present an opportunity for advocates, scientists, and attorneys general to engage with the agencies on the substantive issues at hand.
Despite those pauses, the trend of court decisions vacating Trump-era rules has not stopped completely. Just before the inauguration, EPA attempted to tie the hands of the Biden administration by making its new rule restricting the use of scientific studies to support pollution standards effective immediately. EPA argued that the rule could be made immediately effective because it was merely procedural. But only six days after the inauguration, a federal district court held that the agency was not justified in making the rule immediately effective. The court explained that the rule was not procedural but rather “makes a substantive determination of how the agency should weigh particular scientific information in future rulemakings.” Three days later, with plaintiffs’ consent, EPA asked the court to vacate the rule on the grounds that the agency lacked statutory authority to issue it. EPA had cited its authority under the Federal Housekeeping Statute to issue the rule, but that statute only allows promulgation of procedural rules. In response to that motion, the court vacated the rule. Meanwhile, the pressure remains on, as attorneys general also have a pending challenge in the U.S. District Court for the Southern District of New York against the Trump-era rule.
As the public and states engage with agencies on these large-scale shifts, important enforcement work continues at the state and local level. While the Biden administration works to reverse course following four years of weak federal environmental enforcement, state attorneys general are continuing to hold the line — addressing threats to clean water and breathable air, holding PFAS polluters to account, and protecting public resources, public health, and the public interest. Our highlights from state attorneys general in this edition of Legally Speaking showcase this important work.
Bethany A. Davis Noll is an expert in administrative and environmental law and an experienced litigator. She is Executive Director of the State Energy & Environmental Impact Center.