Environmental attorneys keep eye on Trump policies

It didn’t take long for President Donald Trump to show his environmental and energy priorities would be radically different than his predecessor, former President Joe Biden.

One of his first executive orders revoked dozens of Biden’s executive orders related to energy, climate change, electric vehicles, environmental justice and continental shelf oil or natural gas leasing.

As the first nine months of Trump’s second term have progressed, the U.S. Environmental Protection Agency has announced a number of proposed rule and policy changes in line with Trump’s vision of rolling back what he considers unduly restrictive environmental regulations.

EPA Administrator Lee Zeldin announced one of those proposed rollbacks this summer in Indiana, when the agency unveiled its proposal to rescind the 2009 Endangerment Finding, an Obama-era decision that led to electric vehicle mandates and required the EPA to take action under the Clean Air Act to curb emissions of carbon dioxide and other air pollutants.

“With this proposal, the Trump EPA is proposing to end sixteen years of uncertainty for automakers and American consumers,” Zeldin said, adding that the finding’s rescission would “end $1 trillion or more in hidden taxes on American businesses and families.”

If finalized, the new EPA proposal would repeal all resulting greenhouse gas emissions regulations for motor vehicles and engines.

It’s one of many possible federal rule and policy changes that concern environmental advocates like David Van Gilder, the Hoosier Environmental Council’s senior policy and legal director.

In February, Van Gilder told The Indiana Lawyer that the organization had focus goals, with reducing emissions and combating climate change as top priorities.

He said at the time that those goals had been “thrown under the bus” by Trump’s executive orders.

Van Gilder said in late October that to the extent the EPA changes rules on any topic, Indiana has to follow suit.

He said the main tactic he’s seeing is the EPA, by issuing proposed rule changes with the endangerment finding, forever chemicals or revisions to coal combustion residual rules, is to delay implementation of stricter rules.

“It delays protecting people’s health,” Van Gilder said.

The Biden Administration EPA’s enforcement priorities were mostly welcomed in the environmental community, he said.

Van Gilder said he thinks the current EPA wants to undo science to appease the fossil fuel industry.

Zeldin visits Indiana to announce proposed rule change

Zeldin’s visit to Indiana in July drew a number of state and federal elected officials, as well as business leaders, who declared their support for the EPA rule regarding greenhouse gas emissions regulations for motor vehicles and engines.

Gov. Mike Braun, Attorney General Todd Rokita, U.S. Representative Jim Baird and Indiana Secretary of Energy and Natural Resources Suzanne Jaworowski were among those in attendance at Zeldin’s announcement, held at Kenworth of Indianapolis’ trucking dealership.

The EPA posted a release on its website about the proposed endangerment rollback proposal, which if finalized, the agency claimed will save Americans $54 billion in costs annually through the repeal of all greenhouse gas standards, including the Biden EPA’s electric vehicle mandate, under conservative economic forecasts.

The proposal also cited what it described as updated scientific data that “challenge the assumptions behind the 2009 Endangerment Finding.”

“Do not listen to those haters. The sky will not fall,” the Indiana Capital Chronicle quoted Rokita as saying at the event. “We have the cleanest air, the cleanest water.”

Zeldin billed the proposal as the “largest deregulatory action” in the nation’s history.

Brian Lynk is a senior attorney at Chicago-based Environmental Law and Policy Center’s Washington, D.C. office.

Lynk said a rollback of the 2009 finding “would change the landscape” in terms of emissions regulations for vehicles and engines.

“I think (rolling back) the endangerment finding is an aggressive step to take, Lynk said, noting that it has been settled judicial law for 16 years.

He said he had hoped that this was a step further than the Trump Administration would want to go when the president took office for his second term in January.

With the EPA releasing the proposal, Lynk said, if it is finalized and challenged in court, the federal agency will have to show how two decades of scientific data that supports the 2009 finding is somehow incorrect.

He acknowledged that if any lawsuits ended up in front of the U.S. Supreme Court, the outcome would be in question because of the court’s current conservative leaning.

Lynk also pointed to Justice Clarence Thomas’ dissent in Massachussetts v. EPA, a 2007 case where the U.S. Supreme Court ruled 5-4 that greenhouse gases are air pollutants under the Clean Air Act and that the U.S. government had authority to curb them.

Chief Justice John Roberts and Justice Samuel Alito also dissented in that case.

Environmental rule, policy changes could impact state, U.S.

Some Indiana-based attorneys have been getting calls from clients about some of the administration’s pending rule changes, including the EPA’s proposal to roll back the endangerment finding.

Brad Sugarman, chair of Bose McKinney & Evans LLP’s Environmental Law Group, said his firm has a broad base of clients, ranging from Fortune 100 companies to mom-and-pop stores to individuals that would be impacted by any environmental policy changes, federal or state.

Sugarman said, in general, Democratic presidential administrations lean toward more strict enforcement of environmental regulations and Republican ones veer toward rolling back rules.

“Corporations generally don’t try to overreact to these pendulum changes,” Sugarman said.

He said the 2009 endangerment finding has a lot of litigation history attached to it, citing the Massachusetts v. EPA decision as one example.

With the EPA’s proposal to rescind that finding, Sugarman said he expects issues to be raised in any legal challenges could include whether any parties that sue have the legal standing to do so and the question of why there was an endangerment issue 10 years ago and now the EPA contends there is none.

From the firm’s larger client standpoint, Sugarman said, bigger companies want clarity on greenhouse gas regulation and consistency in enforcement.

Michael Chambers, a partner with the same Bose McKinney & Evans environmental group, noted the Supreme Court as its currently composed has several Trump appointees on the bench.

He said the president has been getting some favorable rulings in general from the high court, as well as expedited rulings in some instances that were rare in recent years.

“Normally, it takes years,” Chambers said of cases involving environmental issues that followed a standard path through trial and appellate courts before they might be heard by the U.S. Supreme Court.

Enforcement priorities change with new presidential administration

The public comment period for the EPA proposed rule change closed in September. Sugarman said there were about 14,000 comments submitted.

Amy Romig, a partner with Plews Shadley Racher & Braun LLP, said that proposed federal rule changes often take years to go through the rulemaking process before they are approved and implemented.

She said her clients have expressed the most concerns about possible changes to the “Waters of the United States” definition, a rule which defines which streams and wetlands are protected by the Clean Water Act.

Romig said that during her 25 years of practice, what she’s observed is that the ushering in of a new presidential administration usually results in a switching up of enforcement priorities as opposed to swift changes in environmental rules and regulations.

Those priority changes tend to show up 12-to-15 months into a new presidential administration, when new enforcement cases are filed.

“I think it takes more than 9, 10 months to see something,” Romig said.

She noted that in Indiana, the Indiana Department of Environmental Management handles about 90% of enforcement matters.

Romig said, for the most part, she feels IDEM does a good job of balancing business needs with protection of the environment.•