February 24, 2017 by John Nicholson
Many posit a material decline in environmental enforcement and a retrenchment or reversal of environmental regulatory initiatives in the new Trump administration. Certainly, one would be prudent to consider that scenario and its implications, given the repeatedly expressed intentions to do just that, by both the president and his team before and after his inauguration.
We believe there are three concrete areas where activism and activity will be on the rise during the Trump administration, targeting a variety of environmental, public health and liability issues of considerable potential consequences to the regulated community, environmental practitioners and the public at large.
Specifically, we postulate that the next four years will see a significant increase in (1) litigation by environmental groups, (2) regulatory enforcement and other actions by multiple states, and (3) efforts by the plaintiffs bar to capitalize on what may be perceived broadly as a withdrawal of the federal government from engagement on matters of environmental protection and public health. Each of these forms of prospective activism is addressed below.
LITIGATION BY ENVIRONMENTAL GROUPS
Environmental nongovernmental organizations (ENGOs) have long established themselves as key players in matters of environmental public policy, regulation and enforcement. The successes of their efforts are far too numerous to count and too diverse to categorize summarily. At all levels of government, ENGOs have prevailed in litigation that has forced agencies to regulate, overturned permitting decisions, and enforced compliance against those in violation of environmental laws and regulations.
During the Trump administration, we would expect the ENGOs to focus their considerable fire power — with renewed vigor enhanced by growing memberships and contributions — in three discrete areas.
First, there is the well-traveled path of using the courts to obtain review and rejection of U.S. Environmental Protection Agency regulations deemed nonconforming with statutory mandates. Specifically, any number of the environmental “rollback” initiatives discussed publicly to date by those associated with the new administration or their allies in Congress will require the U.S. EPA to go through rulemaking under the Administrative Procedure Act.
More specifically, to rescind or amend many existing regulations, including those promulgated in the waning days of the Obama administration, rulemaking will be necessary. Those rules will, in turn, be subject to judicial review.
Many, though not all, U.S. EPA regulations or rulemakings are subject to judicial review before the D.C. Circuit. Its present political composition is seven active judges appointed by Democratic presidents and four active judges appointed by Republican presidents. Litigious ENGOs can thus anticipate a reasonable possibility of drawing a receptive three-judge panel when seeking to overturn Trump administration regulations that appear to the ENGOs to relax current standards, withdraw recent initiatives or otherwise make life easier for the regulated community at the expense of the environment, unless the administration can demonstrate, on the record, that its new policies are not arbitrary or capricious.
Making that demonstration, however, will take time (i.e., to amass a supportive administrative record), which may be contrary to the president’s style and methods to date, in which the deliberative process is eschewed in favor of speed. (For example, the president’s controversial ban on immigration from several predominately Muslim countries has been criticized not just on substantive/policy/legal grounds, but for the administration’s failure to (1) consult with key congressional leaders of its own party; (2) provide advance notice to its own top intelligence, U.S. Department of Homeland Security and U.S. Customs and Border Protection officials; and (3) take due care to draft an executive order with sufficient care, clarity and details). We predict that judicial review of EPA rulemakings will be a fertile area of environmental practice if that decision-making model persists.
Second, ENGOs can be expected to use litigation to force agencies to take regulatory action based on statutory requirements or past policy statements. A perfect example has been referred to as the “Numeric Nutrient Wars.” In 2008, five ENGOs sued the EPA to establish numeric nutrient criteria for the state of Florida, asserting that the EPA had a nondiscretionary obligation to establish such criteria under the Clean Water Act. The U.S. EPA, after initially opposing the ENGO suit, settled the litigation by agreeing to develop and propose the criteria. The U.S. EPA criteria were instantly challenged by the state of Florida, local governments and industry groups as arbitrary and capricious (and by the ENGOs as being insufficiently protective). A federal district court in Florida struck a portion of the rules, ordering the EPA to re-propose elements of the nutrient criteria.
Third, of course, are the opportunities provided by statute for citizen enforcement of compliance with environmental permits and regulations. Many federal statutes provide for such enforcement; and ENGOs have a long and often successful history of bringing these sometimes ready-made cases. For example, the Clean Water Act prohibits the discharge of pollutants into the nation’s waters, unless authorized and subject to a discharge permit that sets appropriate discharge limitations. The Clean Water Act imposes the responsibility of monitoring and reporting permit noncompliance upon the permit holders, requiring them to submit discharge monitoring reports (DMRs). Self-reported non-compliances in DMRs have served as the basis for numerous lawsuits by ENGOs over the years.
It is widely anticipated that the state of California will take positions and actions in significant contrast to the loosening of environmental controls promised by the Trump administration. Leading officials in California have proudly laid claim to that role and course of action. For example, “Gov. Jerry Brown unleashed a full-scale attack on President Donald Trump, declaring California won’t give up a string of policies ranging from climate change curbs to immigrant-friendly laws.”
In some instances, actions by California to impose new or stricter requirements on the regulated community have had repercussions beyond the state’s boundaries. For example, the “check engine light” symbol in a vehicle is part of the on-board diagnostic (OBD) system, which, among other things, monitors a vehicle’s emissions control system to ensure it is working properly. Certifications of OBD systems now go through the California Air Resources Board instead of the U.S. EPA, mainly because CARB’s certification requirements are more stringent than those of the EPA. Certainly, it is reasonable to assume, given the politics now at play and the public statements of officials at the state and federal levels, that some in California will seek specifically to take legislative, regulatory enforcement, and other actions that will have transboundary consequences.
Notwithstanding some Californian’s boast to represent the front line in opposition to relaxation of environmental enforcement or regulation, the state is by no means the only jurisdiction to have a record of stricter regulation or to manifest the intention to so behave in the coming years. Twenty-one states have a Democratic attorney general. Attorney General Eric Schneiderman of New York, for example, has been outspoken about his intention to take on the new administration on environmental issues; he also issued a press release warning that he “stands ready to use the full power of his office to compel enforcement of our nation’s environmental laws.”
THE PLAINTIFFS BAR
It is neither a secret nor a reason for embarrassment that the plaintiffs bar will direct itself toward those litigations in which fees are readily recoverable, particularly where they may materially or vastly exceed litigation costs and investment. So, given past history and anticipated developments at the federal regulatory and enforcement level, where do we expect the plaintiffs bar to go? Again, we anticipate three principal avenues of intensified activity. First, plaintiffs’ lawyers can recover fees in many federal citizen suit enforcement actions to secure compliance with existing laws, regulations and permits. At the local and regional level, many organizations or plaintiffs’ firms with whom they collaborate may view this to be “low-hanging fruit,” in an era of lax enforcement despite self-reporting of noncompliance (e.g., publicly available DMRs).
Second, recent years have shown the plaintiffs bar to be creative in fashioning causes of action, damages theories and prayers for injunctive relief that coincidentally garner attorneys’ fees in attractive amounts in a wide variety of environmental protection and public health situation cases. These cases include anything from toxic mold, to fracking, to allegedly harmful chemicals such as polychlorinated biphenyls (PCBs).
Third and finally, the true “home run” swing for the plaintiffs bar resides in the field of toxic tort, where they have enjoyed both considerable successes and notable failures. The plaintiffs bar is not monolithic; plaintiffs lawyers pursue and accept representations for diverse reasons. For those for whom earning a fee is one source of motivation, there can be no disputing that a larger fee is more attractive than a smaller fee. Hence, the cases that yield the largest damages verdicts against which a contingency fee would be assessed are the most attractive, especially to the big players.
The prospect of diminished enforcement and regulatory retreat under the Trump administration would seemingly yield several attractive toxic tort opportunities for the plaintiffs bar. First, litigation against manufacturers or users of so-called “chemicals at risk” — i.e., those chemicals that have been tentatively, provisionally or newly identified as toxic or harmful to human health (by the EPA or other bodies), but exposure to which is continuing in certain circumstances at levels that are arguably harmful. The contention would be that lethargy or turnabouts by the U.S. EPA, in the face of past scientific findings or thesis, has allowed harmful exposure to injure populations of varied sizes, all of whom are entitled to damages. We do not credit the thesis nor address its merits as to any of a long list of chemicals that may become ripe for such litigation; we merely foresee that consequence to the U.S. EPA retreating from existing standards or pending initiatives in any number of its regulatory programs.
Second, under the Resource Conservation and Recovery Act and other laws, federal and state regulators and enforcement personnel have the authority to take sweeping and often unilateral action to abate “imminent and substantial endangerments” or serious hazards to human health and the environment. Query whether a cessation or reduction in the initiation of such enforcement at the federal level — either in fact or as a matter of perception — will widen the door to private litigation, sanctioned by federal statutes or arising under state law (common or statutory), to address identifiable hazards to local communities.
One disincentive in instituting such actions, at least for some plaintiffs lawyers, would be the inability to translate injunctive relief into compensable money damages for which attorneys’ fees would be derivative and lucrative. Consequently, one might theorize that the plaintiffs bar will seek to marry injunctive actions to abate imminent substantial endangerments with tort claims giving rise to potentially significant damages. For example, a citizen suit under RCRA is injunctive in nature, and courts have repeatedly rejected attempts to recover money damages. Some courts, however, have exercised supplemental jurisdiction over damages claims brought under state law that accompany the RCRA claim.
Finally, should the perception continue to grow that federal authorities are or will be too lenient in permitting decisions — e.g., allowing increased air emissions from permitted facilities, would that provide another opening to the plaintiffs bar? Challenges to permits and citizen enforcement, we predict, will undoubtedly test this thesis.
The Trump administration will no doubt seek many changes in law and policy vis-à-vis the environment. Advocates of many of these changes proclaim them to be aimed at reducing what they would characterize as over-regulation or overly zealous government enforcement. History (and science) have shown, however, that with every action, there is an equal and opposite reaction. Litigation by environmental groups, regulatory enforcement and other actions by the states, and private litigation by the plaintiffs bar will likely increase correspondingly, ushering in a new phase in the long saga of environmental protection, regulation and the importance of environmental law.
About the Authors
Lester Sotsky headed the Arnold & Porter Kaye Scholer LLP firm’s environmental practice from 2006 to 2015. He is a broadly experienced environmental litigator, handling multiple toxic tort, hazardous waste enforcement, Clean Water Act, appellate, and white collar matters. Mr. Sotsky has represented major corporations in virtually every major manufacturing and mining industry, as well as Native American Tribes and other stakeholders.
Andy Wang’s practice focuses on civil litigation on a wide array of national security, white-collar, and environmental matters. Mr. Wang received his Juris Doctorate, cum laude, from Harvard Law School, where he was President of the Harvard National Security and Law Association, Senior Articles Editor for the Harvard National Security Journal, and an oralist for an Ames Moot Court Semifinalist team. He graduated from Rice University, magna cum laude, with a Bachelor of Arts in Political Science and History.