Trump’s Environmental Rollbacks Were Fast. It Could Get Messy in Court.
Posted January 31, 2018 7:54 p.m. EST
WASHINGTON — As the head of the federal agency controlling billions of acres of public lands and waters, Interior Secretary Ryan Zinke has spent the past year making bold policy proclamations to advance President Donald Trump’s energy agenda: He would open coastal waters to drilling, shrink national monuments, lift Obama-era fossil fuel regulations and reduce wildlife protections.
But legal experts say many of the moves were made without fully considering the laws and procedures governing changes like these, making them vulnerable to legal challenges that could delay or block them. They say many of the proposals may follow the fate of other bold and hasty moves by the Trump administration, such as the attempts to limit travel from countries with sizable Muslim populations on security grounds.
“They’re acting in a hurry, appealing to the base, and trying to seem decisive,” said Patrick Parenteau, a professor of environmental law at Vermont Law School. But, he added: “They’re not following the prescribed steps of the law. They’re creating errors for themselves as they go, sowing the seeds for the legal attacks.”
It is not unusual for major policy changes to be hit by lawsuits from opponents. The Obama administration’s own environmental regulations were sometimes controversial because they relied on creative interpretations of decades-old laws to rein in smokestack pollution or stop oil, gas and coal exploration.
Some Obama-era rules have been blocked or delayed by courts. But there is one big difference, Parenteu said. Even though some rules “pushed the edges of legal authority,” the Obama administration mustered a stronger defense by assembling “thousands of pages of support and technical analysis, laid out in mind-numbing detail,” he said. “Here, you have much more ad hoc, knee-jerk decision-making.”
A spokesman for the Justice Department declined to comment on the legal foundations for Zinke’s moves.
Among the most at-risk moves by Zinke thus far, Parenteau and other legal experts said, was a January announcement, made public via Twitter, to exempt Florida from a plan announced a week earlier to expand offshore drilling. The decision was perceived as a political move to help Florida’s Republican governor, Rick Scott, who is expected to run for Senate this year.
The Trump administration’s initial plan to open up the Atlantic, Pacific and Alaskan coasts to drilling, though controversial, largely adhered to the requirements of the 1953 Outer Continental Shelf Lands Act, which governs opening waters to offshore drilling. But the decision to exempt Florida, without holding legally required public hearings or providing a scientific justification, may have thrown the broader drilling plan into question, experts say.
Lynn Scarlett, who served as deputy Interior Secretary under George W. Bush, said that the Florida reversal could well result in other coastal states successfully making the case that they should also be exempt from drilling, thus closing off many of the waters that Trump intended to open to drilling. “There’s the phrase, ‘haste makes waste,'” said Scarlett. “In policy decisions like this, doing your homework, carefully following the legal procedures, strongly enhances the prospect that the changes one is seeking will prevail.”
The Florida exemption, she said, was “out of sync with the approach that’s delineated in the law.”
Gov. Roy Cooper of North Carolina said that his state would sue the Trump administration if it did not receive an exemption. “If you base it on the criteria for Florida, you’re going to get the same result when it comes to North Carolina,” Cooper, a Democrat, said in an interview.
Trump administration policymakers “have the legal right to open up the entire coast to drilling, if they follow the process,” said David Hayes, the deputy Interior Secretary under the Obama administration. “His lawyers must be cringing,” he said of Zinke. “They may have shot themselves in the foot.’
Privately, oil executives who are pleased with Trump’s desire to strip away regulations have expressed frustration at the Interior Department’s methods, worrying that they could bog down the efforts in a legal morass. “What’s important is, let’s step back and go back to regular order, and let the process run its course,” said Jack Gerard, head of the American Petroleum Institute, which lobbies on behalf of oil companies.
James Connaughton, a senior White House environmental official in the George W. Bush administration, said it was typical for new administrations to stumble over the Byzantine legal requirements of environmental policy in its early days.
“It’s just taking longer in this administration, because of delays in getting appointees in place, and delays in meaningful engagement with career civil servants,” he said. “It requires the force of individuals that know what they’re doing, to check the boxes of legislation and regulation,” he said. Scarlett noted that haste may also undermine or delay the Interior Department’s proposal to change an Obama-era plan to protect the habitat of the sage grouse, a bird that roams millions of acres in 11 states, including areas potentially rich in oil and gas deposits.
The Obama-era plans “had been exhaustively developed, with lots of input, including by governors,” Scarlett said. “By going back to the drawing board, even if the idea is to benefit economies of states, it’s just injecting more delay and uncertainty into the picture.”
On other moves, Zinke may have bypassed requirements of the 1970 National Environmental Policy Act, which requires that federal-agency decisions that could have an environmental impact on the nation’s air, water, or pristine wildlife habitats must include a scientific analysis detailing the effects.
Last week, Zinke approved a land swap allowing the construction of a long-contested road through Alaska’s Izembek National Wildlife Refuge, reversing a decision made under the Obama administration. The earlier decision was based on a four-year scientific analysis concluding that the road would irreparably harm critical waterfowl habitat.
In reversing the decision, Zinke offered no new public scientific analysis supporting the change. Traditionally, findings like those would be publicly available. Speaking to reporters last week, Zinke said, “We looked at everything,” adding: “There is no significant issue the Department of Interior has found environmentally.” Asked for a copy of the findings, Zinke suggested making a Freedom of Information Act request.
A lack of new scientific analysis could provide an opening for opponents challenge the road. “To take action to start building the road requires an environmental-impact statement,” said Sally Jewell, the Interior Secretary in the Obama administration, who opposed the road based on the Obama-administration environmental findings. “The law requires the analysis, and they haven’t done one.”
“The agency will have to justify its changes to the courts,” said Jeffrey Lubbers, a professor of administrative law at American University. “If the previous action by the Obama administration was made based on findings of fact,” he said, then reversing it “will have to be justified by saying, ‘those facts are no longer true.’ And that will be difficult to do.”
Experts say that Trump’s efforts to roll back protections on national monuments could hit legal roadblocks as well. Last year Trump announced that, based on a recommendation by Zinke, he intends to slash the size of two Utah monuments, Bears’ Ears and Grand Staircase-Escalante, by about 2 million acres, partly to allow mining.
Legal experts say that the language of the Antiquities Act is unclear on whether a president can shrink a monument created by a predecessor. But there are clear legal restrictions on opening the monument up to mining, said Mark Squillace, an expert on natural resources law at the University of Colorado Law School.
In the case of Grand Staircase, he said, a land management plan approved under the National Environmental Policy Act and the Federal Land Policy and Management Act of 1976 specifies that “mining and mineral leasing is not allowed under the original boundaries of the monument,” he said — the key words being, original boundaries. That language could ultimately prevent mining on lands there, Squillace said.
Last week, California filed a lawsuit against the Interior Department over its plan to undo an Obama-era regulation on hydraulic fracturing, or fracking, on public lands. The rule requires fracking companies, which extract oil and gas by injecting a cocktail of chemicals into the ground, to follow stricter standards on cleaning up waste and to disclose at least some of the chemicals they use.
California’s attorney general, Xavier Becerra, a Democrat, said the rollback violated the law by failing to consider the environmental impacts of fracking, such as the possible contamination of underground water tables.
“They’re making moves that are big and bold, and they’re breaking the law,” Becerra said in an interview. “The rules have to go through a process. You can’t just unwind them by fiat.”