In California vs. Trump, the state is winning nearly all its environmental cases

May 7, 2019 4 AM PT

Reporting from Washington — More than two years into the Trump presidency, California has embraced its role as chief antagonist — already suing the administration more times than Texas took President Obama to court during eight years in office.

It’s having an effect.

California’s lawsuits have targeted the administration’s policies on immigration, healthcare and education. But nowhere has the legal battle had a greater impact than on President Trump’s agenda of dismantling Obama-era environmental and public health regulations.

In its rush to delay, repeal and rewrite rules it considers unduly burdensome to industry, the administration has experienced significant setbacks in court. Federal judges have sided with California and environmental groups in cases concerning air pollution, pesticides and the royalties that the government receives from companies that extract oil, gas and coal from public land.

California says it has filed 49 lawsuits against the administration over a variety of issues. Of those, at least 24 are challenges to policies put forward by the Environmental Protection Agency, Interior Department and other agencies responsible for setting energy and fuel efficiency standards for products such as ceiling fans and cars.

The state has prevailed so far in 15 of the environmental regulatory suits it filed or joined. That includes 10 that have been decided and five instances in which the Trump administration backed down before a judge could make a decision, clearing the way for regulations in areas such as worker safety and polluting diesel-engine trucks that the administration had previously contested.

The state’s tally also includes one case in which the outcome was mixed. A federal judge ruled that the administration had to consider damage to the environment before lifting an Obama-era moratorium on coal sales on public land. But the court did not go as far as California had wanted by halting sales entirely.

The Trump administration is appealing several of those decisions. The other nine of the state’s environmental cases are still pending.

The administration’s early losses stem from a variety of problems, including moving too quickly to change regulations, ignoring procedural rules and failing to present evidence to support its position, according to California officials and legal experts.

“When you’ve got these environmental rules, so much of it is underpinned by the science,” California Atty. Gen. Xavier Becerra said in an interview. “And it so often is the case that the Trump administration can’t produce the science.”

Becerra said he has noticed the administration is slowing the pace of its rollbacks amid the state and environmental groups’ repeated legal successes.

“Like any fighter, you get to the point where you become punch drunk from all the blows,” he said. “We’ve had a great number of victories in our environmental lawsuits against the Trump administration, and after a while when you get punched so much and the blows land, you do slow down.”

Legal experts said they couldn’t recall agencies under any recent president having such a low success rate in court. An analysis of litigation over the administration’s regulatory rollbacks done by the Institute for Policy Integrity at New York University School of Law found that judges have ruled against it in 37 out of 39 cases.

“Every administration has its ups and downs in the courts,” said Sean Hecht, an expert on environmental law at UCLA’s School of Law. “Still, it’s safe to say, the Trump administration has done particularly badly.”

The Justice Department, which is tasked with defending Trump’s deregulatory push in court, disputed California’s characterization of the legal battle. In a statement, it noted that it has bested California twice in court.

Both cases involved lawsuits filed by the federal government. One successfully challenged a state law giving the California State Lands Commission the first right of refusal when Washington decides to sell federal land. Another case involved the federal government’s ability to recover damages from a wildfire that tore through a national forest.

“Isolating issues involving losses, some of which are at the district court level and many of which involved cases that later choices of the administration mooted out, does not begin to tell the whole story,” wrote Assistant Atty. Gen. Jeffrey Bossert Clark.

A common problem judges have cited is that agencies under the Trump administration have violated the Administrative Procedure Act, which was enacted in 1946.

“They do have the sloppiness and the bad lawyering. The failure to follow simple rules,” said Bethany Davis Noll, litigation director for the Institute for Policy Integrity. But Noll said agencies’ repeated violations of procedural rules only partially explain the losses.

As the administration moved past its initial strategy of delaying the implementation of Obama administration policies and into the next phase of attempting to overhaul them, it has run into a different obstacle: It is legally required to provide reasons for changing course.

“They have this big substantive problem where the rules are justified and they aren’t giving us a good reason for abandoning them,” Noll said. “An agency that wants to turn its back on that has a really tough job.”

In late March, a federal judge in Northern California struck down the administration’s repeal of a rule aimed at increasing oil and gas companies’ royalty payments. Called the valuation rule, it was an Obama administration initiative aimed at changing how companies value sales of fossil fuels extracted from federal and tribal land.

The “repeal of the Valuation Rule was effectuated in a wholly improper manner,” wrote U.S. District Judge Saundra Brown in a decision finding that the Interior Department had failed to justify the policy change.

The U.S. Court of Appeals for the 9th Circuit in San Francisco in April put up a new roadblock to the administration’s plans to reverse an Obama-era decision to ban chlorpyrifos, a popular pesticide suspected of harming infants’ brain development. The court gave the EPA 90 days to act on environmentalists’ demands for a complete prohibition.

On Monday, a California federal judge declared that Trump’s EPA had violated the Clean Air Act by failing to enforce rules limiting methane emissions from landfills and ordered the agency to comply with its “long-overdue” duties.

And there’s promise of more: Becerra has threatened to sue if the president goes forward with plans to take away the state’s unique authority to set its own, stricter air pollution standards for vehicles — something the state has been empowered to do since the enactment of the Clean Air Act in 1970.

Hit with defeat after defeat in the courts, the administration has responded by delaying some of its plans.

Interior Department Secretary David Bernhardt told the Wall Street Journal last month that a judge’s recent decision blocking offshore drilling in the Arctic had caused him to pause a controversial plan to open most of the United States’ coastal waters to oil and gas exploration.

The EPA, which had planned to release its final proposal to freeze Obama-era vehicle fuel economy standards in March, has postponed that announcement until later this year. And though the administration has proposed scaling back regulations under the Clean Water Act and the Clean Power Plan, it has yet to finalize any of these changes.

Agencies have blamed some of the delays on lost work time during the partial government shutdown. But Noll said she suspects they are struggling to come up with justifications that can survive a legal challenge.

Many of the cases California and other states have brought against the administration are only beginning to make their way through the courts, and environmentalists’ victories could be reversed on appeal. Republicans have confirmed dozens of Trump-appointed judges to federal appeals courts who might be more supportive of the administration’s positions.

Becerra said that regardless of who sits on the bench, California will continue to challenge Trump’s policies. “We are on them immediately,” he said.

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