A Judicial Threat to Conservation

This essay from the PERC website is interesting. Emphasis added….

A Judicial Threat to Conservation

The recent nullification of environmental regulations by a federal court sets a dangerous precedent.

How aggressive should courts be in reversing environmental regulations?

That question has renewed significance in the wake of this summer’s U.S. Supreme Court decision using a controversial theory to declare unlawful the Obama Administration’s signature climate regulation, the Clean Power Plan. If you are concerned about the Supreme Court’s decision, you should also be worried about a little-noticed development in the lower courts that poses significant short-term and long-term threats to conservation.

Last month, a federal district court in California voided three Endangered Species Act regulations issued by the Trump Administration. Although environmental advocates typically celebrate decisions against former President Donald J. Trump as a win for conservation, in this case that would be a mistake. The implications of the district court’s decision are alarming.

One ominous concern is the basis of the court’s decision. The court did not consider the details of these regulations nor determine that they were unlawful. Instead, the court asserted it has wide discretion to void regulations issued under a former president whenever a new administration with different priorities has expressed interest in revisiting them. This decision, and recent decisions like it, set a dangerous precedent.

The court’s slash-and-burn approach to nullifying federal regulations directly harms wildlife. The three voided regulations covered a lot of ground. When the rules were issued, the Environmental Policy Innovation Center, an organization committed to environmental conservation, reported that the rules contained 33 discrete changes, more of which could benefit conservation than would undermine it. Yet the court erased all these changes, including the beneficial ones, with little or no explanation.

Read the full article from The Regulatory Review.

4 thoughts on “A Judicial Threat to Conservation”

  1. Here is PERC’s usual “market-based” conservation angle: “If landowners are rewarded with reduced regulation when a species improves from endangered to threatened, they are more likely to restore the habitat and invest in other recovery efforts.” This relates to Trump’s changes in critical habitat requirements, and the plaintiffs of course disagree that this is what would happen if there are fewer protections for threatened species than for endangered species.

    The lead-in reference to the Clean Power Plan Supreme Court case is a disingenuous tweak of conservationists for being inconsistent (if they don’t like one court decision they shouldn’t like any of them?), but the circumstances of these cases were entirely different. The Clean Power Plan case was a challenge by economic interests to the repeal of the Trump regulations which reverted to the Clean Power Plan, and the current administration defended the repeal. In the ESA case, brought by environmental groups, the current administration had moved to remand the Trump ESA regulations to redo them.

    In the latter case, the judge said, “When an agency’s action is challenged in federal court, “it may seek remand [of the challenged regulations] even absent any intervening events, without confessing error, to reconsider its previous position.” The only issue was whether to keep the Trump rules in effect or revert to the prior rules (the latter is the “presumptive remedy”). In going with the latter, the court also determined that, “As the Services acknowledge, “[c]ourts have recognized that definitive findings on the merits are not required in order to vacate a challenged agency action.” It doesn’t appear that this case is breaking any new ground.

  2. PERC alluded to West Virginia v. EPA, a Supreme Court case that invalided the Clean Power Plan, a federal regulation that would have addressed climate change. Most view this case as being about a conservative Supreme Court that wants to rein in government agencies’ (the “administrative state’s?”) ability to make policy (instead of Congress), using what has been characterized as the “major questions doctrine” to restrict courts’ deference to agency interpretations of the laws. Some speculate that its potential implications may reach public land management.

    The EPA sought to “generation shift” the nation’s overall mix of electricity generation from 38% coal to 27% coal by 2030, to be replaced by renewables like solar or wind. The CPP aimed to effect this shift by setting stringent goals for each state to cut power plant emissions by 2030. The Court found that Congress had never given the agency explicit authority to exercise such “unprecedented power over American industry.” It held that, “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” The Court potentially narrowed the scope of future application of this case by noting that the specific provision of the Clean Air Act had “rarely been used in the preceding decades,” and that Congress had previously rejected efforts to enact similar programs that the EPA sought to implement with the CPP.

    Here is a summary of possible implications from a blog post: “Going forward, all federal agencies (not just the EPA), will need to show that their actions are supported by clear, express statutory authority, at least when their actions might be adjudged to have “vast economic and political significance.” Agency attempts to use “long-extant” statutory language that the agency never wielded will be intensely scrutinized. Regulatory changes that affect an entire industry at a fundamental level will be highly suspect. And if Congress has “conspicuously and repeatedly declined to enact” a similar rule, the agency’s decision to nevertheless issue a regulation will rarely pass muster.” https://law.stanford.edu/2022/07/06/west-virginia-v-epa-and-the-future-of-the-administrative-state/

    While this case may appear to give the courts broad discretion to decide what is of “such magnitude and consequence,” and without “clear delegation,” it doesn’t strike me that federal land management would be a likely target. This was a case about an agency trying to use regulations to make an old law fit an unforeseen situation with purportedly extreme effects. Circumstances like this don’t seem to arise with the laws we are accustomed to seeing applied to land management agencies (climate change is being addressed under existing NFMA, NEPA and ESA regulations). I also wouldn’t expect this view of judicial deference to be precedential for typical project litigation, especially where agency scientific expertise is at issue.

    (The new Inflation Reduction Act amended the Clean Air Act to define the carbon dioxide produced by the burning of fossil fuels as an ‘air pollutant, and explicitly gave the EPA authority “to regulate greenhouse gases.” The new language should provide more “clear delegation,” regarding the Clean Air Act’s purposes; however, in a recent presentation, an environmental attorney did not think this change would have made difference in this court case.)


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