Update: 10/14/2020: During the last day of hearings for Supreme Court nominee Amy Coney Barrett refused to say if she accepts the science of climate change. Under questioning from Senator Kamala Harris, Barrett said she would not comment “on a very contentious matter of public debate, and I will not do that.” Read more here.
Our guest for the latest episode of our podcast, Trump on Earth, Michael Gerrard, professor of energy and environmental law at Columbia, weighed in:
Judge Barrett may not have firm views on this, but every court in the world that has addressed the issue has agreed with the scientific consensus on climate change. Views differ on role of the courts, but not on the reality of problem. We track the cases: https://t.co/epDWGJw3mP https://t.co/dp7WyTq958
— Michael Gerrard (@MichaelGerrard) October 14, 2020
Many of President Trump’s environmental actions have faced court challenges. So how’s the administration doing?
For our podcast, Trump on Earth, host Julie Grant takes a look at how the Trump administration has been faring in court with Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia University
But first, Grant talks with Ann Carlson, founder and co-faculty director of the Emmett Institute on Climate Change and the Environment at UCLA Law about a climate change case just added to the Supreme Court docket.
Listen to the episode:
(This conversation has been edited for clarity and brevity.)
Supreme Court Climate Case
Ann Carlson, is the founder and director of the Emmett Institute on Climate Change and the Environment at UCLA Law. She’s here to talk about a climate change case just added to the Supreme Court docket.
Ann Carlson: Several municipalities around the country, along with several states and counties, have sued big oil companies for damages caused by climate change.
Grant: These local and state governments want to hold energy companies, like Chevron and Exxon, responsible for damage from sea-level rise, hurricanes and wildfires they say have increased because of climate change. So cases have been filed in state courts around the country
Carlson: In courts in Minnesota, and in Baltimore, and all over California, and in Boulder, Colorado, and in New York City, the city of Seattle, Charleston, South Carolina, Hoboken, New Jersey…the oil companies prefer that the cases be heard in federal court instead of state court.
“[Oil companies] don’t want a repeat of what happened to the tobacco industry. So delay is to their benefit.”
They have been fighting this battle for several years and they have lost in almost all courts that have considered the question. But the Supreme Court just took up one of the cases on a really technical ground. And that is: When can oil companies appeal motions that they lose about whether they can be in federal court? Typically, they can appeal only after trial, but the question the court is going to consider is whether they can appeal immediately upon losing the motion.
Grant: If even one local government wins one of these cases, Carlson predicts a cascade of similar lawsuits against oil companies, which could cost them billions of collars. So, oil companies want to appeal state court rulings, and move these kinds of cases to the federal court system which is considered generally more sympathetic toward business.
Carlson thinks energy companies really want to delay trials in state courts that might expose their executives to public scrutiny about how they reacted to climate change.
Carlson: The real consequence, if the Supreme Court finds in favor of the argument that the companies are making, [is that] it will slow the cases down. It will give the companies more opportunity to delay the decisions they don’t like.
Really importantly, it could keep companies from having to answer what’s called discovery, where the plaintiffs would have the opportunity to interview under oath executives of oil companies about what they knew about climate change, when they knew it, and what they did about climate change. I think oil companies are really trying to avoid that, I think they don’t want a repeat of what happened to the tobacco industry. So delay is to their benefit.
Grant: Carlson is not sure that a new 6-3 conservative-leaning of the Supreme Court will affect the specific decision that the justices will be deciding in this case. She does not see much in the history of Judge Amy Coney Barrett, Trump’s nominee to replace Ruth Bader Ginsberg, in how she might decide an administrative law case like this.
Ann Carlson is founder and co-faculty director of the Emmett Institute on Climate Change and the Environment at UCLA Law. We should note, she has been doing pro bono legal work to support some of the local governments against energy companies in these types of cases.
How Trump is Doing in Court
Now we take a look at how the Trump administration has been faring in court with Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia University.
Julie Grant: The administration has rolled back about 100 environmental regulations. Many of those rollbacks have been challenged in court. How’s the administration been doing so far defending those changes?
Michael Gerrard: The administration has accumulated a very poor win-lose record in court in its deregulatory actions. That is primarily because they’ve been sloppy in following the necessary procedures.
“The administration has accumulated a very poor win-lose record in court in its deregulatory actions. That is primarily because they’ve been sloppy.”
There are statutes like the Administrative Procedure Act and the National Environmental Policy Act (NEPA) that need to be followed in adopting or revoking or significantly modifying a rule. They have often just bypassed that or tried to eliminate something without coming up with the thorough explanation that the courts require. So many of these actions have been halted by the courts.
Grant: If there were to be a Biden administration, what can they do in these cases? Could they completely change a rule from what the Trump administration had done?
Gerrard: If Biden wins the presidency, I expect that very early on he would revoke many of the Trump executive orders. But to the extent that the Trump administration got all the way through the formal rulemaking process, a Biden administration would have to go back through that process again to revoke the rules that had been adopted. None of the actions that were taken were irrevocable. There weren’t any amendments to the statutes that would require congressional action. But some of the things that could be done could be undone immediately. Some of them would take a while.
Grant: In terms of the Trump administration, if they have a second term, could they take some of these cases and review and revise them? Do they have to do a whole new rulemaking or can they just change them and then wait and see if somebody challenges them again in court?
Michael Gerrard: If President Trump is reelected, I expect that they will try to go back and do this again. Because they didn’t follow the right procedures, they may well have learned the lesson and do it right this time [and] go back through a full rulemaking. So it would take some time. It would take at least several months. But if he’s reelected, they’ll have four years to do that. I expect that they would carry through on many of the things that they tried to do the last time, but were halted on procedural grounds.
Grant: You’ve mentioned that there’s been a significant percentage [of court cases] lost, but there have been some wins by the Trump administration in their attempts to roll back environmental regulations. What are some of the big wins we’ve seen under this administration?
Michael Gerrard: There are some methane rules that have survived, but most of the rules either were struck down or the litigation is still pending. There are very few that have really gotten all the way to the finish line and have been wholly upheld. Most of the cases are still pending.
Julie Grant: Is there something in particular you might point out that you say they really got what they wanted here?
Michael Gerrard: No, not yet. For instance, with the regulations under the National Environmental Policy Act (NEPA), they have gone into final form. But there are several lawsuits that are pending right now. They have a certain vulnerability. We’ll see what happens with them. Likewise, the rejection of the California waiver for motor vehicle standards, which allow California to have stronger standards at the national level for emissions from cars — some of that has gone through but is subject to litigation.
“There are very few [cases] that have really gotten all the way to the finish line and have been wholly upheld. Most of the cases are still pending.”
Julie Grant: So when you see administration officials saying, ‘hey, we think we’re actually doing pretty well,’ sounds like you disagree with that.
Michael Gerrard: I do disagree with that. They have certainly succeeded in preventing any new regulations from going through or in enhancing the implementation of the regulations. We’ve seen a decline in enforcement. We’ve seen lots of other things happen that are going contrary to environmental protection. They have certainly succeeded in that, but they have not succeeded in actually revoking a lot of regulations and having those survive through the courts.
Supreme Court Cases
Julie Grant: The Supreme Court, of course, is front and center right now with the passing of Ruth Bader Ginsburg and Judge Amy Coney Barrett being nominated. Are there any environmental cases the Supreme Court is likely to hear?
Michael Gerrard: I think it’s highly likely that the Supreme Court will hear more environmental cases. One that we’re particularly looking at is on October 8th. The U.S. Court of Appeals for the District of Columbia is hearing oral argument in the lawsuit that is challenging the Trump administration’s repeal of the Clean Power Plan and its enactment of a very weak substitute called the Affordable Clean Energy Rule.
So after the D.C. Circuit rules on that decision, whoever is unhappy with the decision might try to take that to the Supreme Court and that could provide an opportunity for the court to revisit some important issues on climate change. There will undoubtedly be other cases on environmental regulations that could also be brought to the Supreme Court.
Grant: If Judge Barrett is confirmed and winds up on the court, what would you expect in a 6-3 conservative court?
Gerrard: It’s very worrisome. The Supreme Court decision that really formed the basis for most of the actions by President Obama on climate change was Massachusetts versus EPA issued in 2007 that found that the state of Massachusetts had standing to bring the lawsuit and that the Clean Air Act applies to greenhouse gases. So it was a 5 to 4 decision. The majority included Justice Ginsburg. It also included Justice Kennedy, who has been succeeded by Justice Kavanaugh.
Now, Justice Kavanaugh is the member of the court who seems most skeptical of EPA regulations. There are two worries here. One is that the Supreme Court might find that the Clean Air Act does not apply to climate change. Now, that’s something that that Congress could fix. If the Democrats have the Senate and the House and the White House, Congress could pass legislation making it explicit that the Clean Air Act does apply to greenhouse gases. So that would undo that.
“It’s imaginable that the Supreme Court would restrict the ability of parties to sue on climate change, on the theory that…you have to be affected differently than the public at large. And everybody’s affected by climate change.”
It’s also imaginable, I’m not going to predict it, but it’s imaginable that the Supreme Court would restrict standing, would restrict the ability of parties to sue on climate change, on the theory that in order to sue, you have to be affected differently than the public at large. And everybody’s affected by climate change. Also on the theory that in order to bring a lawsuit, you have to have redressability — that if you win the lawsuit, it has to get you what you want. And if what you want is no climate problem, then no one lawsuit will do that.
So there is some risk that the Supreme Court could turn around on a standing doctrine and that would be tougher for Congress to overcome, because it’s based on the Constitution, not on the reading of an ambiguous statute.
Future of Environmental Laws and Regulations
Grant: Are there any other ways you think her appointment might impact the future of climate policy?
Gerrard: There’s a growing philosophy among some conservative legal scholars of something called the non-delegation doctrine, the idea that Congress shouldn’t delegate too many policy decisions to administrative agencies and instead has to be very specific because otherwise, the agencies can go wild.
Many of the environmental statutes were intentionally general and left it to EPA or other agencies to figure out how to achieve their objectives. It is possible, we don’t know for sure, but it’s possible that a reconstituted Supreme Court could embrace that doctrine and use it to invalidate any number of regulations that are not really specific.
“If we have a Democratic Congress and president, Congress [may need to adopt] laws that are much more specific than it’s used to doing…that’s a big problem for environmental regulation with these new discoveries we have all the time.”
Now, there is one similar kind of precedent where Congress felt it needed to be a lot more specific in the way it wrote the laws than usual. In 1984, under the Reagan administration, we had a Democratic Congress that did not trust EPA to vigorously implement the environmental laws. The chief issue then was hazardous waste. So Congress passed a law in 1984 that was much more specific than it usually does. It named a lot of chemicals so that EPA would not have the wiggle room not to implement it. That worked. That 1984 statute was successful and EPA had to follow it.
So one can imagine that happening again – – that if we have a Democratic Congress and president, Congress adopting climate change and maybe other environmental laws that are much more specific than it’s used to doing.
Julie Grant: It’s very interesting because you think your experts are probably going to be at your agencies, not in Congress.
When President Trump nominated Neil Gorsuch to the Supreme Court, we heard a lot about this idea of Chevron deference, how the courts would defer to the agency in areas of scientific expertise on policy matters. Could you explain that?
Michael Gerrard: Yeah, there’s a longstanding legal doctrine called the Chevron doctrine, which basically means that if a statute passed by Congress is ambiguous, then they’ll defer to the agency’s reasonable interpretation of what the statute means. So the Chevron doctrine has been under attack by a number of conservative legal scholars and some members of the Supreme Court.
So it’s possible that if we can have a 6-to-3 conservative majority in the court, that we’ll see less of this Chevron deference, and it would be harder for agencies to adopt regulations.
One thing that would be very unfortunate if Congress needs to be extremely specific in setting forth the procedures that EPA or other agencies have to follow, is [that] new environmental issues are discovered all the time. Congress can’t always anticipate it.
When Congress passed the Clean Air Act, very few people were thinking about climate change. But the language of the statute is broad enough that it encourages EPA to look at new scientific discoveries and deal with them. But if Congress needs to be really specific, that’s a big problem for environmental regulation with these new discoveries we have all the time.
Michael Gerrard is founder and faculty director of the Sabin Center for Climate Change Law at Columbia University.
Trump on Earth is a podcast exploring the environment in the Trump era with deep analysis, clear information, and real talk from the critics, scientists and thinkers who know the issues. Hosted by reporters for The Allegheny Front and produced by Andy Kubis. Don't miss an episode, subscribe to the podcast.