The US’s top environmental regulator is expected to face a barrage of legal challenges from fossil fuel groups and Republican states after it unveiled a new crackdown this week on pollution.
The Environmental Protection Agency issued two new rules that aim to limit toxic emissions from chemical plants and remove cancer-causing chemicals from tap water, as the Biden administration tries to advance its climate agenda before November’s presidential election.
Lawyers say both rules are likely to trigger imminent challenges from corporations and Republican states that will argue the rule making exceeds the federal government’s constitutional powers – and expect a conservative supreme court could be sympathetic to their claims.
“This is the most right-wing court we’ve seen in almost a century, and that’s emboldening conservative legal activists to swing for the fences with legal claims that would have been laughable just a few years ago,” said Sam Sankar, a lawyer at Earthjustice, an environmental law organisation. “The legal landscape has shifted, and it’s profound.”
The lawsuits are stacking up as Republican states rush to launch challenges ahead of the election.
Republican attorneys general in 24 states including Alabama, Kentucky and West Virginia sued the EPA last month in an effort to roll back rules curbing air pollution and capping methane leaks from the oil and gas sector.
Sixteen red states including Texas, Louisiana and Florida also last month sued the federal government over its decision to freeze approvals for new export terminals for liquefied natural gas along the US coastline.
In December, 11 states also sued the EPA over handing tribes veto power over new energy projects, although last month a federal judge denied their request for a preliminary injunction.
Meanwhile, West Virginia is co-leading 10 red states in litigation against the Securities and Exchange Commission, the US’s securities regulator, over rules that would require companies to disclose some of their greenhouse gas emissions.
“This is a trend that has been around for a long time, but it’s getting more intense,” said David Doniger, a former EPA official, referring to lawsuits. “Now they seem to sue over everything.”
The legal attacks are part of a broader battle between US government agencies, which set and enforce regulations for business and industry, and the judiciary branch.
The legal activists have been encouraged by a landmark case in 2022, West Virginia v EPA, in which the supreme court curtailed the agency’s ability to limit greenhouse gas emissions from power plants. The court ruled the EPA had not been explicitly authorised by Congress to exercise its powers in the way it proposed.
The court is deliberating on another case, Relentless Inc v Department of Commerce, that seeks to overturn a 40-year-old legal doctrine that says courts should generally defer to agencies’ interpretation of laws written by Congress.
Jonathan Adler, professor of environmental law at Case Western Reserve University School of Law, said the legal onslaught was partly a result of the Biden administration issuing more climate rules than previous administrations.
The administration’s use of rules to advance its agenda had opened up a “legal vulnerability”, he said, because the rules lacked specific Congressional statutes authorising “meaningful climate regulation”.
Adler said: “What that means is that the climate regulation we get is based on using laws that were written for other purposes, being applied to greenhouse gases.”
“The supreme court has made clear that it’s sceptical of agencies trying to pour new wine out of old bottles – and in environmental law, most of our bottles are really old,” he said.
State attorneys general, who are elected officials in most US states, have pounced on this vulnerability.
“Federal agencies, and very specifically the SEC ... need to stick to the statutory mandate that Congress gave them and avoid manipulating private actors for the sake of progressive policy,” Patrick Morrisey, West Virginia’s attorney general, said after his state and others including Alabama and Georgia filed their case last month.
But analysts say the reactions from some attorneys general smack of political opportunism.
Morrissey, a Republican, is campaigning to be West Virginia’s next governor. Others are also using the actions against President Joe Biden’s climate agenda to raise their local profile.
Cynthia Hanawalt, director at the Sabin Center for Climate Change Law at Columbia Law School, said the latest slew of legal challenges against climate rules should be viewed “partly through a political lens”.
“There is a sophisticated communications strategy around it – several states said they would sue even before they saw the SEC’s proposal on climate disclosures,” Hanawalt said. “That suggests there was an agenda beyond the particulars of the rule.”
The SEC has now put a hold on its own rule making pending a review from a US appellate court weighing the legal challenges from the Republican state attorneys-general, among others.
Doniger said that although the Republican attorneys general would not “always win”, more “speculative” cases were being lodged. “The next couple of years are going to tell whether these far-fetched and extreme case are going to prosper or fail,” he said. – Copyright The Financial Times Limited 2024
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