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Supreme Court Could Give Trump Second Chance at Environmental Rollbacks

[Update: President Trump has selected Judge Amy Coney Barrett to fill Ruth Bader Ginsburg’s seat on the Supreme Court.]

WASHINGTON — President Trump has initiated the most aggressive environmental deregulation agenda in modern history, but as his first term drives to a close, many of his policies are being cut down by the courts — even by Republican-appointed jurists who the administration had hoped would be friendly.

Those losses have actually heightened the stakes in the election and the fight over a replacement on the Supreme Court for Justice Ruth Bader Ginsburg: A second term, coupled with a 6-3 conservative majority on the high court, could save some of his biggest environmental rollbacks.

Since January courts have dealt a series of blows to the Trump administration’s plans to ramp up fossil fuel development and undo decades of environmental protections. This month, a federal appeals court temporarily blocked implementation of a major rollback of methane emissions standards for the oil and gas industry while it considers permanent action. That followed decisions by judges that have thrown the future of the Dakota Access Pipeline into doubt, struck down the relaxation of protections for migratory birds and vacated the rollback of an Obama-era rule to reduce waste from natural gas flaring on federal lands.

Five recent unfavorable rulings came from Republican-appointed judges, including a 6-3 clean water decision in April by the Supreme Court with Justice Ginsburg in the majority. A panel of three judges appointed by President Trump unanimously overturned a policy that would have suspended hefty new penalties for automakers who failed to meet fuel efficiency standards.

According to a database kept by New York University’s nonpartisan Institute for Policy Integrity, the Environmental Protection Agency has won only nine out of 47 cases in court under Mr. Trump, while the Interior Department has won four of 22. The Trump administration’s overall win rate hovers just under 16 percent, the group said, compared to win rates of about 70 percent for both the Obama and Bush administrations.

But the courts have in most cases given the administration an opportunity to go back and revise their work. The future of those rules may then rest on whether Mr. Trump is re-elected, with a 6-3 conservative majority on the Supreme Court ready to hear his fresh attempts.

“If there is a second Trump administration they may have time to go back and do it right,” said Michael B. Gerrard, the director of the Sabin Center for Climate Change Law at Columbia Law School.

Trump administration officials and supporters dispute the institute’s statistics and contend they have obtained mostly favorable outcomes. On Sept. 11, for example, the United States District Court for the Western District of Virginia declined to block the Trump administration’s overhaul of the National Environmental Policy Act from taking effect, pending an ultimate decision on the legality of the regulatory changes.

But even conservative legal scholars said the mounting losses are impossible to ignore.

“There is a sense that the administration has been in a hurry and has been sloppy,” said Jonathan H. Adler, a conservative legal expert and professor of environmental law at Case Western Reserve University in Cleveland.

Courts have yet to rule on Mr. Trump’s biggest rollbacks of clean water rules, curbs to greenhouse gas emissions in automobiles and power plants, and environmental reviews of infrastructure projects. But activists and Democratic attorneys general expressed confidence that judges would find the unwinding of even those environmental protections illegal, despite the work that went into them.

Early in the administration, a number of courts ruled that agencies acted illegally by providing little or no justification when they rewrote, weakened or repealed regulation.

Now courts are increasingly telling the E.P.A. and Interior Department that their legal, scientific and economic analyses upholding rollbacks directly violate underlying laws.

Some of the decisions have been scathing.

“It is not only a sin to kill a mockingbird, it is also a crime. That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence,” Judge Valerie Caproni of United States District Court for the Southern District of New York wrote in an August ruling that blocked the Trump administration’s relaxation of protections for migratory birds.

In a statement, the Interior Department said it still intended to move forward with a final rule on the changes.

In the case overturning the Trump administration’s relaxation of penalties for automakers, the three Republican judges found “no ambiguity” in the statute that Congress passed in 2015 ordering federal agencies to adjust a wide range of civil penalties to account for inflation.

And in August a panel of two judges appointed by Republicans and one appointed by a Democrat on the United States Court of Appeals for the Third Circuit rejected the E.P.A.’s 2019 approval of an air pollution rule for Pennsylvania that would have allowed coal-fired power plants in that state to exceed pollution limits.

The court typically gives the federal agency deference in decision-making, the judges wrote. But they said, “To receive such deference, the agency cannot reach whatever conclusion it likes and then defend it with vague allusions to its own expertise; instead, the agency must support its conclusion with demonstrable reasoning based on the facts in the record.”

The E.P.A. contends it has been successful in the majority of its significant cases. In an opinion article for Bloomberg Law, the agency’s general counsel, Matthew Z. Leopold, pointed to cases like a federal court ruling in August that rejected a request from 17 states to block the Trump administration’s revisions to a rule that significantly narrows the definition of which bodies of water are federally regulated, and a 2019 federal appeals court ruling that upheld the E.P.A.’s decision not to finalize an Obama-era requirement that mining operators prove they can pay for cleanup in the event of a disaster.

Jeffrey H. Wood, who served as acting assistant attorney general for the Justice Department’s environment and natural resources division under Mr. Trump and is now a partner at the law firm Baker Botts, agreed: “The current record shows that D.O.J. and E.P.A. are making a solid defense of the Trump administration priorities.”

Similarly, a spokesman for the Department of Interior said the agency’s success rate has been “impressive,” pointing to a March decision in which a federal judge upheld a decision to repeal Obama-era standards for hydraulic fracturing on public lands.

Mr. Leopold and Mr. Wood, in interviews, both said the N.Y.U. rating system wrongly classified a case as “unsuccessful” for the administration if the court identified any flaw in the agency’s work. They argued that courts often find defects in government actions but allow the policy to go into effect.

Patrick J. Morrisey, the attorney general of West Virginia who relentlessly sued the Obama administration over coal regulations, said administration critics had left out important wins, like a Supreme Court decision that declined to block a pipeline delivering natural gas from West Virginia to North Carolina.

“The Trump administration, along with allies like me, wins on big-picture issues at the highest levels,” Mr. Morrisey said.

Xavier Becerra, California’s attorney general, who recently filed his 100th lawsuit against the administration, said the flaws in this administration’s regulatory efforts were consistent.

“The Trump administration is impatient,” he said. “The Trump administration is sloppy. The Trump administration doesn’t like to do its homework.”

He argued Democratic attorneys general, who have been pounding the administration with lawsuits, have three things on their side: “The facts, the science and the law.”

Mr. Gerrard said one notable trend in the administration’s losses was that courts are objecting to regulatory analyses that are supposed to back up policies but make no mention of the policies’ impact on climate change. In May, the United States District Court for the District of Montana vacated 287 oil and gas leases issued by the Bureau of Land Management in 2017 and 2018 because the agency had failed to examine the leases’ cumulative climate impacts.

Similarly, a federal court ruling in July 2019 granted a preliminary injunction to conservation groups that challenged the renewal of grazing permits in Oregon because, the judges found, the Bureau of Land Management had failed to consider the effects of climate change.

And, in 2018, a federal judge in Montana ordered the Trump administration and TransCanada to stop work on the Keystone XL pipeline, saying Mr. Trump’s approval of the project violated laws by ignoring facts about climate change.

“The administration is so reluctant to mention climate change that they get in trouble for not even mentioning it,” Mr. Gerrard said.

He and other regulatory experts noted that if Joseph R. Biden Jr. gets into the White House in January, he will have to provide a written explanation of the reasons he wants to roll back each Trump administration action. Eliminating Trump’s executive orders will be relatively easy, but going through the regulatory process all over again on issues like fuel efficiency standards will take time.

That would make lawsuits brought by Democratic attorneys general all the more important because they will have kept many rules from going into effect while their replacements wind their way through the regulatory process.

“A lot of these rollbacks are going to have very shallow roots, and perhaps no roots as all,” said David Hayes, executive director of the State Energy and Environmental Impact Center.

James E. Tierney, a former Maine attorney general who now teaches courses at Harvard Law School on the role of attorneys general, said that they are “institutionally designed to be independent watchdogs, independent brakes on power.”

Their relative independence from executive power, whether in their own state or the federal government, goes back to the thirteen original colonies, and, before that, English common law.

“If there’s a Democratic president, roll up your sleeves and wait for Texas to file lawsuits against President Biden,” he said.

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