By David J. Hayes
January 7, 2021
President Trump’s assault on our nation’s climate, clean energy and environmental laws and values is coming to an end. Time will tell how much permanent damage has been done. But we know an important fact now: Over the past four years, state attorneys general have successfully executed the legal equivalent of a full court press against the administration. They have initiated hundreds of actions that have slowed down the onslaught and delayed or weakened dozens of rollbacks, even as they pursued an affirmative agenda to advance their state interests in climate, clean energy and environmental justice.
The arc of the Trump administration’s rollback efforts is now familiar. Early executive orders instructed political appointees at the EPA and the Interior and Energy Departments to remove environmental “barriers” that allegedly were holding back domestic fossil fuel development. For the first two years of the administration, Trump’s lieutenants looked to advance “energy dominance” by short-circuiting ongoing environmental rulemakings, delaying impending compliance deadlines, and ignoring statutory directives.
State attorneys general, working alongside environmental groups, public health advocates, scientists, state regulators, activists and an engaged public, took the administration to court, winning a string of court decisions in 2017 and 2018 that invalidated many of the initial slapdash efforts to undermine and reverse regulatory protections for our air, water, public lands and wildlife, and exposing, along the way, the administration’s disregard for the rule of law.
After their early victories, state attorneys general and their allies held their ground as the Trump administration tried to develop and then justify its changes in direction. In its haste to make up for squandered time, however, the administration repeated many of the same errors — poor planning, shoddy legal arguments and fudged math — that had led to its first wave of court defeats.
Indeed, as we will chronicle in a major report that we will release next week (entitled Full Court Press), the Trump administration’s marquee environmental, climate and energy deregulatory policies have the shallowest of roots, and all are on thin legal ice. In the climate arena, for example, state attorneys general have exposed the facetious safety claims and high consumer costs and climate pollution consequences of rolling back automotive fuel economy standards. Auto companies know the final rule is legally flawed, poorly reasoned and unpopular, and most have committed to follow California’s stricter rules. Likewise, the EPA’s rule exempting the oil and gas industry from any obligation to control methane emissions — a climate-busting super pollutant — emerged late (last August) and is, on its face, contrary to both the letter and spirit of the Clean Air Act. Leading oil and gas companies have publicly criticized it and state attorneys general have joined many other groups in challenging it in court.
With these and many other late-breaking rollbacks suffering from flawed reasoning and incomplete administrative records, companies will rely on them at their own risk while the new administration and the courts — working with state attorneys general and other public interest advocates — clean up the mess. On many other matters, state AGs have had outright wins. They successfully defended states’ rights to adopt low carbon fuel standards; subsidize zero-carbon nuclear power; establish net metering rules for distributed energy; and, in the case of California, coordinate its carbon market with non-U.S. jurisdictions. AGs have forced the Energy Department to implement energy efficiency standards; stopped coal bailouts; and helped strike down “Kafkaesque” barriers to aggrieved landowners’ access to courts. They persuaded the Supreme Court to close a key loophole under the Clean Water Act; obtained court victories that protect downwind states’ air quality; and forced the EPA to back down from its COVID non-enforcement policy. AGs beat back attempts to open the Atlantic Ocean to damaging oil and gas seismic testing and drilling and won key court rulings upholding protections for migratory birds and federal coal and oil and gas royalty reforms. They launched environmental justice initiatives and demonstrated how environmental rollbacks disproportionately hurt lower-income communities and communities of color.
The list goes on. Wait for our upcoming Full Court Press report next week for more.
David J. Hayes is a nationally recognized environmental, energy and natural resources lawyer who leads the State Energy & Environmental Impact Center.