US presidency: Can the green rollback be rolled back?

Michael Goldhaber, IBA US Correspondent

President Trump announced in the autumn that America’s Environmental Protection Agency (EPA) aims to rescind its Clean Power Plan rule. It was intended to be the linchpin of America’s compliance with the Paris Climate Agreement, though the legislation is yet to take effect. Environmentalists, not just in America but globally, are hoping the courts can save the plan.

The key question is whether the seminal legislation – the Clean Air Act (which dates back as far as 1963, and has received thorough amendments since, in 1970 and 1990) – permits the Clean Power Plan’s creation or destruction.

This question is already being litigated in the DC Circuit appeals court by the Trump administration and a group of fossil fuel friendly states headlined by West Virginia, versus a coalition of green nonprofits and pro-regulatory states led by New York.

But, President Trump’s lawyers have asked the DC Circuit to stay this case until the EPA actually rescinds the Clean Power Plan.

‘‘We want the court to officially recognize the due process right to a life-sustaining climate

Robert Routh
Clean Air Council

In the meantime, two schoolboys and a green nonprofit, represented by the renowned anti-cartel lawyer Michael Hausfeld, have stepped forward with a bold strategy. In a suit filed in Philadelphia for the Clean Air Council, Hausfeld argues that President Trump’s rollbacks of global warming policy violate constitutional rights to the enjoyment of life and property, as well as violating the government’s duty as a ‘public trustee’ to protect natural resources.

‘We want the court to officially recognise the due process right to a life-sustaining climate,’ says the Clean Air Council’s Robert Routh. It should declare that ‘the government can’t undermine the modest protections we currently have’, and broadly recognise ‘the need to use good science in rulemaking'.

In contrast to the DC Circuit Clean Power Plan suit, ‘we're not looking at one act in isolation,’ says Hausfeld. ‘We're looking at the aggregation of cumulative acts that are being taken to minimise scientific understanding and [to slow] the advancement of the United States to prepare for climate change.’

Hausfeld’s suit also seeks to enjoin the Trump administration from any future rollbacks of climate change policy. That might, for instance, cover a loosening of fuel standards, a reconsideration of the finding that global warming endangers public health, or the promised withdrawal from the Paris Climate Agreement.

The Philadelphia children’s suit broadly resembles a 2015 climate action filed by children in Oregon known as Juliana v US. Each invokes due process and public trust to attack global warming policy. But while the Oregon plaintiffs argue the government has an ‘affirmative duty to protect,’ says the Clean Air Council’s Joe Minott, ‘we argue there’s a duty not to endanger – not to undo what's already in place.’

Hausfeld elaborates: ‘Both deal with climate change, with whether what is being done is sufficient,’ he says. ‘Juliana is looking at what’s been done over the past half century and saying it’s not enough. We're looking at a short period of history and saying, “Wherever we were on January 20 [2017] that was the floor. If you go beneath that floor without anything but junk science to support it, you're increasing the dangers.”’

In seeking to persuade courts to take the momentous step of protecting the climate through constitutional law, the Philadelphia strategy claims two advantages. First, the US has a long line of jurisprudence on the inadequacy of junk science in the context of excluding evidence at mass tort and antitrust trials. The complaint notes that the US government acknowledged global warming as early as 1965, and the plaintiffs aim to expose EPA’s unscientific basis for its rollbacks through document discovery.

Second, US courts are historically loathe to force an agency to go further when it is already moving forward. Courts tend to be more comfortable prodding regulators when they are either standing still or moving backwards.In short, Hausfeld believes that ‘it’s a clearer more forceful claim when the government affirmatively acts to place people in danger – particularly based on junk science.’

John Cruden is President of the American College of Environmental Lawyers and served as Assistant Attorney General for the Environment and Natural Resources under both President Barack Obama and President George W Bush, leading on both the Deepwater Horizon and Volkswagen litigation.

Though describing himself as ‘very sympathetic’ to their suit’s goals, he views the strategy with scepticism. ‘This case and Juliana both have a positive effect in the sense that they focus people’s attention on important and vital issues, though I frankly don't expect either case to be successful,’ he says.

Cruden says Clean Air Act rules can only be challenged in the DC Circuit under the terms of the statute. While Cruden agrees that courts are generally bolder when the EPA has failed to act, he thinks it essential that each statute in question has imposed a responsibility to act. A broader ground for decision is unlikely, he says, because the courts have squarely rejected the idea of a federal public trust doctrine, and the current Supreme Court is highly unlikely to embrace a new constitutional right to a clean environment.

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John Cruden, President of American College of Environmental Lawyers; former Asst Attorney General for the Environment

For his part, Hausfeld believes that the deepening of an existential climate crisis obligates advocates to think outside the box, and judges to rule creatively. That the plaintiffs will face Republican-appointed judges leaves them unperturbed. Global warming ‘is not a Democratic or Republican issue,’ says Minott. ‘Most Republicans are fully cognizant of the science.’