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January 16, 2019
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| Federal courts, including the U.S. Supreme Court, above in May 2017, will be a central stage for environmental conflict in the coming year, with cases ranging from climate change to public lands, from water pollution to industrial waste. Photo: Susan Melkisethian via Flickr Creative Commons. Click to enlarge. |
Issue Backgrounder: Many Environmental Court Disputes Will Make News in 2019
EDITOR'S NOTE: This story is one in a series of special reports from SEJournal’s Joseph A. Davis that looks ahead to key issues in the coming year. Visit the full “2019 Journalists’ Guide to Energy & Environment” special report for more.
An important arena where environmental news will be made in 2019? Not Congress. Not the White House. Not the federal agencies. It’s the courts, especially federal courts at the district, appeals and even Supreme Court levels.
That may not be too surprising, given that Congress has enacted a huge body of environmental law over the past half-century or more, and that the Trump administration is now trying to undermine and reverse those laws on many fronts, including with its administrative authority.
Here are some legal disputes to watch in the year ahead, including several focused on climate change.
1. Climate liability cases charge energy firms with deceit
2. Kids’ climate case gets to core intergenerational equity issue
3. Clean Power Plan could be repealed, replaced … or not
4. National monuments — can they be shrunk?
5. Coal ash rule back in dispute, especially in states
6. Clean Water Rule to see White House, court, congressional action
7. Offshore drilling, testing under contention
1. Climate liability cases charge energy firms with deceit
A whole fleet of legal disputes, sometimes called “climate liability” cases, are now currently before courts seeking to hold fossil energy companies accountable in some way for their actions in the past.
One set of such cases essentially charges that energy companies knew that their products would cause climate change, but proceeded anyway to the detriment of the public. The most high profile is against ExxonMobil, with lead plaintiffs the attorneys general of Massachusetts and New York.
ExxonMobil has come under fire after investigations by outlets like InsideClimate News showed that Exxon scientists knew the dangers of climate change decades ago. The suit charges Exxon changed course and sought to deceive the public, launching a long, well-funded PR campaign denying or casting doubt on the climate science.
The Supreme Court on Jan. 7 declined to block Massachusetts AG Maura Healy’s demand for a trove of historical Exxon records.
Another category of cases charges fossil energy companies with deceiving their own shareholders about climate-related financial risks. Still others seek to hold energy companies liable for climate-related damages (like flooding) to cities and states themselves.
The year 2018 saw an explosion of such cases, and they will be working their way through the courts in 2019.
2. Kids’ climate case gets to core intergenerational equity issue
The “kids’ climate case” is news because it has already been to the Supreme Court, offers images of likeable young people and, most importantly, gets to a core issue of climate change, namely whether this generation of carbon emitters has any right to destroy the future of the next generations.
The case, Juliana v. United States, was brought by a group of 21 teens and young adults who assert that government failure to control anthropogenic climate change deprives them of their right to a safe climate.
Although originally filed during the Obama years, it has evolved with the Trump administration as the defendant. And the Trump team has been trying to derail and stop it for two years.
In November 2018, the kids surmounted what seemed to be the final two obstacles before trial when both the Supreme Court and Ninth Circuit Court of Appeals refused Trump to halt the case.
The case will go forward this year in a U.S. District Court in Oregon. But the kids’ success is far from guaranteed. The basic argument of intergenerational equity is a fairly innovative one, but it has failed in other forums.
The trial will be great TV, however, and it will elevate the climate issue even as the executive and legislative branches take another run at it.
Of course, if the kids do win, it would set a precedent that would rock the world of environmental law.
3. Clean Power Plan could be repealed, replaced … or not
The “Clean Power Plan” was the keystone of Obama-administration climate efforts — a rulemaking under the Clean Air Act that would limit greenhouse gas emissions from electric power plants.
Challenges from the coal and utility industries put it on hold even before Obama left office, and courts delayed it further as the Trump EPA took regulatory action to repeal and replace it.
Now the Trump replacement, known as the “Affordable Clean Energy” rule, is grinding through its own round of legal challenges.
The case (actually a set of cases) is before the U.S. Court of Appeals for the District of Columbia Circuit.
On the one side is an array of states and environmental groups supporting Obama’s original Clean Power Plan. They want the litigation to move forward (subscription required).
On the other side is the coal industry, some utilities and the Trump administration. They want the court to delay action while the Trump rulemaking moves forward. That rule is still in the proposed stage (subscription required), and will not be ripe for further litigation until EPA finalizes it. That is not likely until March 2019 or later (subscription required).
So, the biggest current issue in the most consequential climate lawsuit is whether it should be further postponed (subscription required). To predict progress in 2019 would be optimistic.
4. National monuments — can they be shrunk?
An old law, the Antiquities Act of 1906, allows the president to create by fiat special protected areas called national monuments. Former President Barack Obama created quite a few new ones, over the objections of many in the states and in the GOP-controlled Congress.
President Donald Trump set his Interior Secretary Ryan Zinke to review the monuments, and Zinke recommended in August 2017 that Trump shrink or re-designate some of them, particularly Bears Ears Monument and Grand Staircase-Escalante Monument, both in Utah. Trump did so (may require subscription) in December 2017.
The legal basis for presidential authority
to shrink national monuments, if any,
is one of the key issues in a set of lawsuits
challenging the Trump proclamation.
One problem: the Antiquities Act only talks about creating monuments — it says nothing about uncreating or downsizing them. So the legal basis for presidential authority to shrink monuments, if any, is one of the key issues in a set of lawsuits challenging the Trump proclamation. Plaintiffs include conservation groups and Native American tribes.
The Utah monuments case is being heard in a federal court in Washington, D.C. Preliminary briefs began in 2018 and the case will continue in 2019.
5. Coal ash rule back in dispute, especially in states
Is past litigation about coal ash over? Hardly. But in 2019 it may be as readily found at the state level as at the federal level.
Coal ash is various residues left over after millions of tons of coal are burned in electric power plants. Historically, it has not been disposed of safely — but instead left as slurry or powder in unlined pits that leach toxic heavy metal pollutants into both surface and groundwater.
Tighter regulation of coal ash disposal was an ambitious mission of the Obama presidency, but the Obama rule finalized in 2015 satisfied neither environmentalists nor industry.
In its deregulatory fervor, the Trump EPA in July 2018 finalized some revisions further watering down the Obama rule. But in August 2018, the U.S. Court of Appeals for the District of Columbia Circuit stepped in with a ruling (subscription required) that even the Obama rule wasn’t protective enough. The court ordered EPA to revise its rule. When it does, more litigation will likely follow.
Environmentalists are currently in court challenging the Trump rule.
Current rules allow EPA to delegate authority for coal ash regulation to the states. Oklahoma was the first state to get such authority, and environmentalists filed suit in September 2018 to prevent this transfer of authority. There are more states lined up behind Oklahoma.
6. Clean Water Rule to see White House, court, congressional action
In 2019, you will see the “WOTUS” rule in court. That’s the Waters of the United States rule that attempts to define what waters are subject to pollution control under the Clean Water Act, or CWA. Congress and the Supreme Court have been unable to lay out any coherent framework.
The agriculture, real estate development and mining industries are among those passionately interested in this issue, because it involves water pollution resulting from their disturbance of land.
It is clear that the Clean Water Act applies to
large, navigable lakes and rivers — but less clear
how it applies to wetlands and ephemeral streams
that drain into those waters.
It is clear that the CWA applies to large, navigable lakes and rivers — but less clear how it applies to wetlands and ephemeral streams that drain into those waters. For decades after the CWA was first passed in 1972, its provisions were the main method for federal conservation of ecologically valuable wetlands.
Faced with inaction by Congress and dithering by the Supreme Court (in 2001 and 2006 cases), the Obama EPA and the Corps of Engineers in 2015 tried to resolve the uncertainty by issuing its WOTUS rule, aka the “Clean Water Rule.”
Environmentalists loved it and industry hated it. Industry and Republican states went to court and got the Obama rule stayed in 2015, and complex litigation followed.
In January 2018 the Trump EPA suspended the Obama WOTUS rule with the intention of replacing it. This action was opposed in court by a coalition of states and environmental groups.
In August 2018, a judge reinstated the Obama rule in half the states. Then in December 2018, the Trump administration issued its proposed replacement WOTUS rule, which would drastically shrink CWA jurisdiction. This will likely be finalized in 2019, whereupon it will inspire a whole new generation of lawsuits.
This year, Dems also may be able to use their control of the House to add appropriations riders to the fray.
7. Offshore drilling, testing under contention
Offshore drilling will certainly be another bone of legal contention in 2019. Some Gulf states like it. But most Atlantic and Pacific coastal states oppose it because of threats it may present to tourism, fisheries and other resources.
The Trump administration has been making a show of its plan to aggressively lease (may require subscription) offshore tracts for drilling. The result may be a gusher of court cases in 2019.
One issue drawing attention now involves seismic testing. Before they drill, oil companies try to chart geologic formations under the sea floor by creating loud sound blasts with airguns and sonar and then analyzing the echoes. Environmentalists and biologists say this can injure many marine species, especially those like whales and dolphins whose livelihoods involve sound.
In Nov. 2018, the Trump administration began issuing permits (may require subscription) to oil companies for seismic testing along the Atlantic coast.
In response, attorneys general for Atlantic states began filing lawsuits against the Trump administration to block the testing. The coalition (may require subscription) currently includes 10 states, controlled by both parties, along with environmental groups. They claim the administration is violating the Marine Mammal Protection Act.
Although much of it will happen in the courts, the fight will be more wide-ranging than that. There will be contention over the administration’s 5-year leasing plan, which begins as a regulatory matter.
And now that Democrats control the House, they may well include state-specific drilling bans in appropriations bills — something often done in the past. States may also pass laws or rules regarding their 3-mile zone of offshore jurisdiction, which blocks oil produced farther offshore in federal waters.
Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's Issue Backgrounders and TipSheet columns, directs SEJ's WatchDog Project and writes WatchDog Tipsheet and also compiles SEJ's daily news headlines, EJToday.
* From the weekly news magazine SEJournal Online, Vol. 4, No. 3. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.
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