One Year In
“Faced with a barrage of bad ideas and backward policy, these are the times when the work that Earthjustice does matters most—when the power of the courts to hold the executive branch in check is most critical.”
With an administration and Congress hostile to environmental protection, the courts have never been more important. Earthjustice President Trip Van Noppen, with VPs of Litigation Patrice Simms and Drew Caputo, discuss the progress we’ve made in the first year of the Trump administration, the challenges we face, and strategies for the years ahead. This briefing, a conversation on Jan. 30 with Earthjustice supporters, was moderated by Maggie Caldwell.
Earthjustice is the nation's original and largest non-profit environmental law organization. As expert legal strategists, we take on the big environmental fights and the high-stakes cases where we can have an enduring impact. And we stick with them until we win. We exist because the Earth needs a good lawyer.
Today, we're here to talk about how we've defended the environment, public health and our democracy in the first year of the Trump administration, and where we go from here. It's been an unprecedented year in many ways.
We'll dive in to give you a closer look at how Earthjustice works in and out of the courtroom against attacks by an unfriendly Congress, corporate polluters, and an administration that is hostile to the very rule of law.
On the evening of the election, we knew immediately that this would be an Earthjustice moment for the duration of this administration.
There were two predominant reactions that were immediate and emotional.
One was knowing that we'd been in this situation before. We have, indeed, in the long life of Earthjustice, encountered other administrations that were going to be hostile to environmental protections and public health protections for which we fight. And we have successfully resisted many of those threats and assaults by going to court during those previous administrations. So we knew that this would be an Earthjustice moment for the duration of this administration.
The second was an overwhelming feeling throughout Earthjustice that was expressed many, many times in person, in internal communications and exchanges, of our staff being grateful to be working at Earthjustice at a time like this, as opposed to wondering what in the world to do next because they knew—people knew right away—that Earthjustice had a crucial role to play. We're grateful to be part of it, and that's been true ever since.
On defensive litigation and the tremendous areas of potential progress in many of the states and in international work.
Our response as an organization was to immediately develop a three-point action plan. Our staff and board went right to work, and within days, we were clear about the path forward.
First, there was—at that point—about just slightly over two months remaining in the Obama administration, and there were many irons in the fire of things we were wanting to have accomplished during the Obama administration before they left office. We wanted to maximize what we could accomplish in the remaining days of that administration. There were many things for which we've been working for a long time. We wanted to get them across the finish line. We had a great deal of success with that.
Secondly, we immediately began preparing to defend both recent Obama administration decisions that we had supported and long-standing environmental protections which we'd been working with for years from the attacks that we knew would come.
We developed a plan within the organization to expand our capacity to do defensive litigation in the cases we knew would come to defend against the policy decisions that the Trump administration and executive branch agencies would make as soon as the inauguration took place, about a year ago now.
As we did that, our board and supporters responded immediately with support that enabled us to quickly add additional staff in the litigation team, and in the communications and lobbying teams, to fight these fights beginning right away.
The third aspect of the action plan was to recognize that we would not spend this four-year period of this administration purely playing defense. And despite what was going to be going on in Washington, D.C., there were tremendous areas of potential progress in many of the states and in international work.
We could build on and invest in our work in key states and in countries overseas and continue to drive progress forward, despite what was going on in Washington.
The action plan has been hugely useful in guiding our work, and we felt prepared by Inauguration Day in having identified the threats that would come quickly, and how we would respond to them.
The real effect of EPA’s decisions in delaying regulatory protections is more pollution and more sick people.
We have seen—not surprisingly—not a lot of real progress on environment and public health issues here in Washington, D.C., these days. But what we find is that we're faced with a fairly constant barrage of bad ideas and backward policy from the federal agencies, including, of course, [Administrator of the U.S. Environmental Protection Agency] Pruitt.
These are the times when the work that we do matters most—when the power of the courts to hold the executive branch in check is most critical, and when the value of litigation as a policy tool is at its highest.
On the ground, what we've seen most predominantly here in D.C. over the past year are attempts to prevent good policy adopted in previous administrations from taking effect. And we've been there at each step to make sure that this administration can't get away with ignoring or casually dismissing its obligation to implement important environmental and public health programs.
These efforts to abandon regulatory protections have largely taken the form of decisions to delay the effectiveness of rules that were already adopted and finalized in the previous administration, but that had yet to go into force.
Fortunately, the courts have demonstrated a willingness to hold EPA to its legal responsibilities. And while many of the cases that we're involved in are still pending there have been some really important and telling wins already.
The courts are not going to allow EPA or the other agencies to simply skirt their statutory responsibilities. And the environmental community and Earthjustice are not going to stand by and let the administration get away with breaking the law.
Some examples stand out among the first situations where we found ourselves on the winning end of—one of these delay cases related to an effort by the administration to put off rules that were designed to limit the emissions of methane pollution, a potent greenhouse gas and a contributor to smog pollution.
This ended up representing one of our very first wins against the administration. And the methane rule, of course, simply required oil and gas companies to take steps to capture these so-called 'fugitive emissions' of methane—quantities of gas that otherwise being released into the atmosphere.
These emissions were not insignificant. They added up to some 10 million metric tons per year and represented a loss, ironically, of billion dollars of potential revenue. And the [health] impacts on these emissions were being acutely felt by communities in the oil and gas country.
Nonetheless, the Trump administration wanted to take a 'do nothing' approach. EPA delayed that rule and provided no health-based justification for doing that and had not identified a valid statutory authority for its action. And the court was willing to recognize that—not only recognize it, but take the extraordinary step of summarily vacating EPA's delay—that is, ruling that EPA could not do what it had done without even undertaking a full briefing on the merits—essentially saying that EPA had no viable argument for its approach in that instance.
And this was just sort of a 'first shot across the bow,' if you will. But this decision, I think, sent a really important message to the administration that the courts weren't going to allow EPA or the other agencies to simply skirt their statutory responsibilities, and that the environmental community and Earthjustice wasn't going to stand by and let the administration get away with breaking the law.
If EPA wanted to change the law, it would have to follow the rules. And of course following the rules means, in most cases, pursuing formal notice and comment rulemaking. The significance of that is that that process affords the public, including Earthjustice and our clients, the opportunity to build the record and to hold the agency to its obligation to fully think through and defend its actions.
We hold agencies to the letter of the law, build a case for the most stringent possible protections, and follow-through in court if the agency fails to fully live up to its obligations.
These attempts at delay have been numerous and many of them are still ongoing.
Over the summer there was another attempted delay on smog protections, and EPA announced—summarily—that it was going to allow states to take two years longer than the Clean Air Act allows to begin the process of addressing dirty air quality, extending smog problems in those areas with the worst air, where people already suffer the most, things such as aggravated asthma and decreased lung function and other health impacts.
We filed a lawsuit in that case. And again, EPA took this action without attempting to provide health-based justification with very little legal justification for its action.
And the day before EPA was required to respond to our complaint, it withdrew its announcement, told the relevant states that they had to meet the applicable statutory deadline after all.
But these are the kinds of cases—these are the kinds of issues—that are coming up. And we stand ready to continue to fight the delay of important controls. And as the agency begins its efforts, and the EPA and other agencies begin their efforts of formal rulemaking processes, we will stand ready to participate in these actions to protect clean air and clean water and to protect communities from toxic contamination.
We're already following through with this commitment in litigation on a number of issues related for example to the integrity of the Clean Water Act and to demanding protective rules for toxics and in products and processes. We stand with respect to these actions to hold the agencies to the letter of the law, build a case in each instance for the most stringent possible protections and to follow-through in court in any case that the agency fails to fully live up to its obligations.
Some of our most treasured national parks began as national monuments.
National monuments are among the most valuable public lands that we enjoy as Americans, and they belong to all of us. They include places like Devil's Tower in Wyoming and Dinosaur National Monument in Colorado and Utah
Some of our most valuable national parks started as national monuments under a law that was enacted in 1906 when Theodore Roosevelt was president. So, the Grand Canyon and Arches National Park and Acadia National Park all began as national monuments, when they were designated as such by previous presidents.
Given the value of these lands, it's a little crazy that we're having to battle to protect them.
But there are two groups of interests that are hostile to national monument protection. One is a small band of anti-government ideologues who are sort of the current manifestation of the Sage Brush Rebellion from the 1970s that are hostile to the whole idea of federal public land protections.
And, maybe more perniciously, it's also industries like the mining industry and the oil and gas industry, that want to get at these resources and can't do so if they are designated as national monuments.
On defending Bears Ears and Grand Staircase-Escalante National Monuments.
We knew even before President Trump was inaugurated a year ago that he was going to go after some of the national monuments, because of an industry and a right-wing campaign that was being operated against them.
So here at Earthjustice, even before President Trump was inaugurated, we established a team of lawyers who began preparing legal arguments and working with potential clients so that we could challenge any action that President Trump took that would be harmful to national monuments.
It took him a while, but last month on December 4, President Trump flew to Utah—which is, for some reason, the center of the anti-monument forces—and he signed two proclamations to slash the size of two national monuments located in Utah.
One was the Bears Ears National Monument which was established by President Obama in 2016. And President Trump's proclamation lopped 85% off that national monument with the stroke of a pen.
And the second monument he attacked that day in December was Grand Staircase-Escalante National Monument, also in Utah, which was established by President Clinton all the way back in 1996—more than 20 years ago. And President Trump lopped off about half of that national monument at the stroke of a pen.
Now, we were ready. That happened on December 4. And before that day was out, we went to federal district court in Washington, D.C., and we filed a lawsuit against President Trump and other officials in his administration challenging what he did to Grand Staircase-Escalante Monument as illegal under both the Antiquities Act and the Constitution.
And three days later, after our Native American Tribal partners filed their lawsuit, we filed a second lawsuit challenging President Trump's decision to dismember Bears Ears National Monument.
[Editor's Note: Drew explains the legal arguments behind the two lawsuits.]
If and when the president attacks other national monuments, we will sue him swiftly and stand up for these places that are so valuable to all of us.
That is the way we roll in the Trump administration. When we see that they are coming after something that we hold dear and that's valuable to all Americans, we get ready to fight it before it happens—and we move as quickly as possible. And that is the model that we're going to continue to follow here at Earthjustice.
Unfortunately, I doubt that the president's attacks on national monuments are finished with his attacks on those two monuments in Utah.
We expect other attacks on other national monuments, both on land and in the water. And we have at this moment, teams of Earthjustice lawyers in offices around the country preparing lawsuits so that if and when the president attacks other national monuments, we will sue him swiftly and stand up for these places that are so valuable to all of us.
There’s never been offshore oil production in the Arctic Ocean. And there’s never been offshore oil production in the Atlantic Ocean. Our aim is to keep it that way.
Unfortunately, one of the big emphasises of the Trump administration is to try and expand oil and gas drilling everywhere it can, including off our coasts.
There has never been offshore oil production in America, except in the Gulf of Mexico and in a small portion of Alaska waters off the south coast of Alaska. So, there's never been offshore oil production in the Arctic Ocean, and there's never been offshore oil production in the Atlantic Ocean. There are a few old leases in state waters in California. But beyond that there's never been any offshore oil production in the Pacific.
And our aim is to keep it that way. But the president's going in the opposite direction.
Before he became president, in between the election and the inauguration, we knew that one of the things that he was most likely to do was to reverse an action President Obama took in late 2016 to remove most of the Arctic Ocean and important pieces of the Atlantic Ocean from availability for offshore oil drilling. That's something that President Obama did based in part on advocacy from Earthjustice and our partners. And we knew that President Trump was going to go after that.
Sure enough, he did so in the spring of 2017. So we have sued him in federal court in Alaska challenging his illegal decision to reverse President Obama's protection of the Arctic and Atlantic.
His administration also has in process a proposed revision to the federal government's offshore drilling plan to try and add these protected areas back into that offshore drilling plan so they can offer oil leases moving forward. And as soon as that plan is complete, Earthjustice expects to challenge it in court on behalf of our clients.
And finally, we think that the Trump administration—probably next month—will authorize issue permits for companies to do underwater seismic testing which involves towing huge air guns that essentially make the sound of explosions underwater—very loud—as a way of testing the seabed for oil and other minerals.
That process is not only the first step in offshore oil production or exploration, but it's also really harmful to marine mammals. So if, as we expect, the Trump administration permits that sort of underwater sonar testing in the Atlantic Ocean, we expect to challenge that decision on behalf of our clients.
What we expect in year two: The Trump administration operating like a candy store for industrial and corporate interests. We will fight that in court.
Year two of the Trump administration will build on two dominant themes.
The themes of their environmental and energy policy approach to all kinds of decisions across the federal agency landscape are, one, fossil fuel expansion anywhere and everywhere.
And this is premised on a notion of United States global energy dominance—with fossil fuels at the heart of it—that we should be developing, at the maximum rate and to the maximum extent possible, our public lands and public waters for oil, gas and coal production, reversing years of policy in doing so. That drives a lot of decisions about the management of our public lands, the management of our waters and oceans, our energy policy, our climate policy, our regulatory policy involving the power and mining industries, et cetera.
All of those kinds of threats that relate to expansion of fossil fuels are one of the two big themes of this year. We will be fighting battles across all these areas.
The second big theme relates to aggressive deregulation across the board, again, of environmental and public health protections.
We've seen in 'year one'—and we'll see even more in 'year two'—the administration is operating like a candy store for industrial and corporate interests to come in and work through the agency processes that matter to them to remove existing regulation that's designed to protect the environment and protect public health, replace it with either something weak or nothing at all. And that candy store will be operating throughout 2018.
We will fight in court and otherwise to protect any assault on existing protections on any delay of existing pollution control equipment that is resulting in people being sick or loss of protections or federal lands and waters that are decimating species and cherished landscapes, polluting our air and water.
We’re focused on the big decisions being made in the dark, under the radar, without much public notice or coverage in the news. We’re bringing daylight to those decisions, and we’re fighting them in court.
The Trump administration acts through tweeting. They're governing through Twitter to a significant degree. And the President’s Twitter feed keeps people stirred up, and it keeps people distracted.
We're focused on the big decisions that they’re making oftentimes under the radar without much public notice or coverage in the news, because the 'front page' tends to be dominated by the crisis of the moment, the scandal of the moment, the tweet of the last half hour—rather than these substantive issues. We’ve got our eyes on the prize. We’re not distracted by the tweeting circus.
We’re focused on these decisions that agencies are making often in the dark. We’re trying to bring daylight to those decision and we're fighting them in court.
We are fighting the administration’s desire to turn our public lands into sources of private economic gain.
Whenever there are extractive industrial uses permitted on public lands, the money that goes from that leasing goes into the federal Treasury. And in some circumstances, part of that money is shared with the states in question.
There is, of course, a lot of other money indirectly swirling around efforts by industry to develop federal lands. The oil and gas industry and the mining industry, for example, are among the most prolific contributors of campaign funds to elected officials.
The whole effort to turn our public lands into sources of private economic gain for some of the biggest and most powerful industries in America is not only a significant part of the story about the attack on national monuments, but it's a significant part of the story about the Trump administration’s desire to, for example, produce fossil fuels by drilling and mining everywhere, every day, all the time. That’s a big part of what we are fighting right now and are going to continue to fight.
When it comes to the agency’s decision-making processes, we can demand in the context of litigation around those issues that every relevant factual and science-based consideration is a part of that decision-making process.
One of the things that we’ve seen out of this administration is a real attack on the principles of sound science—an attack on the commitment to scientific integrity.
We see that in the context to the discussion of issues like climate change. We view this as a critically important part of—not just EPA, but across the administration: the obligation of the agencies to focus and to focus meaningfully on science and science that matters. We have the opportunity to address those issues in some fashion.
That is, as the agency takes discrete actions—as the agency takes actions that are regulatory actions, that are rulemaking actions, that are implementation actions—if it fails to adequately address the relevant scientific and technical issues that it ought to be considering as a part of those decisions—whether they relate to the impact of greenhouse gases on climate change, or the impact of pollutants of other pollutants on people’s health—we can, in the context of our challenges to specific agency actions, hold them accountable to address and consider all of the relevant science and all of the relevant impacts that are required in order for them to make a defensible decision in any particular context.
That’s a little bit different than saying that we can keep the agency from censoring its website [to remove information on climate change].
But when it comes to the agency’s decision-making processes, we certainly can demand in the context of litigation around those issues that every relevant factual and science-based consideration is a part of that decision-making process and to the extent that the decisions that the agency is making are relevant to those issues.
And if they failed to consider them, the courts are likely to recognize that and admonish the agency appropriately.
On judicial appointments by the administration.
It’s absolutely true that we depend upon an impartial and fair judiciary to do our work.
What we found through the years is, in general, at the levels of the judiciary where most of the cases are decided—at the federal district courts and the courts of appeals—judges view themselves as law enforcers, and we bring our cases showing violations of law, whether it's by polluters or by agencies.
The judges aren't evaluating the cases based on are they personally environmentalists or not. They're evaluating them based on what does the law say, and what are the facts here and has the law been violated? When it has, they're not shy about enforcing it. We’ve been able to win cases through the years in front of lots of different judges of different political stripes appointed by different administrations, and so we expect that to continue to significant degree.
We did see during the eight years of the Obama administration a lot of judicial appointments. There could have been more. They were a little slow in some periods of time during the years, but they shifted the partisan balance among some of the crucial courts of appeals in the country, including the D.C. Circuit Court of Appeals, which decides many, many important cases under the Clean Air Act and under many of our other environmental laws. We have a giant number of cases pending in the D.C. Circuit at any given moment.
The Trump administration—as the press has been covering—has been acting quickly, with the full cooperation of the Republican-led Senate, to fill judicial vacancies as quickly as they can. And their appointments have not been ones that would generally be friendly to us. They’ve been ideologues in many respects, particularly in the deregulatory sense.
It’s not yet at the point where that’s really dramatically shifting the balance of the judiciary as a whole or in any of the key courts that we worked in. Over four years, there will be some impact. If there is a second term over eight years, there would certainly be an impact.
But I think the single biggest wildcard in this judicial nominations question is: will President Trump get a second Supreme Court nomination, and if so, to replace which Justice? If one of the Justices who typically votes in support of cases that we would be interested in in the Supreme Court—the so-called 'liberal to moderate' wing of the Court, or Justice Kennedy, who's usually the swing member of the Court—if any of those five were to be replaced by Trump appointee, the ideological makeup and the likely rulings of the Supreme Court would be affected.
If, on the other hand Trump, gets an appointment because of resignation or death of one of the more conservative four members of the Court, that wouldn’t really change the ideological balance of the Court. So it depends not only on who’s appointed, but who are they replacing. And so the big question is, is there a second Supreme Court nomination, and then, the second big question is, is there a second term?
A third question that goes along with this would be: is there some chance that the Senate will change its partisan makeup in the 2018 election? We’re not going to go off into electoral speculation here, but there’s some chance—not an overwhelming chance—that the Democrats could re-take the Senate. If that happened, again, you have a significant slowdown in judicial nominations and confirmations, and change in who is being confirmed that we would undoubtedly welcome.
So those are the variables. We’re not seeing a crisis at the moment. It's not a trend we like, but we there are a lot of things that will change the trend in the future we hope.
When agencies like EPA fail in their responsibilities, we can take them to court. And the courts have proven themselves willing to direct the executive branch to live up to its obligations.
We're facing hostility from this administration and from Congress that is more fierce than we have seen in the past, but it’s not fundamentally different.
We have been, as an organization, in this position in the past, with an administration that essentially had adopted a deregulatory agenda and was committed to undoing some of the most important regulatory protections that we have in the law.
What we rely upon is the statutes that guide the agency’s behavior—including, significantly, EPA: those statutes are binding on the agency.
And many of those statutes, certainly the ones that we rely on the most—like the Clean Air Act and the Clean Water Act, that protect the air that we breathe and the water that we rely on for drinking water sources and for recreation and for our food sources—those statutes are written in a way that allows us to enforce them, that allows us to hold the administration, hold the relevant agencies to their obligations.
Where the agency fails, we can take them to court. We can demonstrate what the statute requires of the agency. And the courts have been have proven themselves time and time again willing to direct the executive branch to live up to its obligations.
What do we do if the executive branch begins to simply ignore the instructions of the federal courts? That certainly would be a situation that would be new to us and new to everyone.
The courts have the power to hold federal agencies in contempt. It’s not something we have sought to have them do in the past nor have we been in the position of having to do that but the courts have that power.
Ultimately, if an agency fails to comply with a court order, the court has the option of taking additional steps in the form of contempt or something else to force the agency to take the actions required by law.
And the question about state law is a very good one. We certainly are seeing that the situation at the federal level is one where there's an awful lot of work to be done and a lot of that work is about holding the line on these hard won environmental and public health protections that we have fought so hard for over the last several decades. But we're not likely to advance the ball very much. We’re not likely to move the needle forward and see greater protections than we have now—but there are some opportunities at the states, at state level.
And one of the things that we are doing institutionally is taking those opportunities seriously, really thinking about how we can work with communities on a local and regional basis to begin to address some of these issues that we’ve relied on federal law for a long time to address. How can we take those to the states and help communities find ways to protect themselves where they live?
Public comment is important because we are a democracy. When people organize and raise their voices up, politicians notice.
The public comment process on proposed federal actions is really important for two reasons.
One is when an agency makes a decision, it has to consider all the evidence that’s in front of it. If members of the public, in the face of a proposal, for example, to harm the ocean environment by military training, if a commenter submits information that the Navy doesn’t consider in making its decision, that’s a potential legal vulnerability in what happens, and we might be able to use that. So it's important legally.
The second reason public comment is important is that we are a democracy. The last election proved that we are in imperfect democracy, but we are still a democracy. A lot of these issues at the end of the day are going to be resolved at the ballot box. When people organize and raise their voices up, politicians notice.
We have seen circumstances, for example, where our opponents have successfully organized to stop things that were good that we tried to put in place when we had a better president. We can do the same thing when there are bad proposals from a bad administration.
That kind of public engagement is really, really important.
On hope, in an unprecedented time when it feels like everything we care about is under attack.
We are a country of laws. And these laws are designed in many ways to ensure that we have a degree of continuity.
And that continuity is what allows us is an organization to defend the boundaries of what is permissible, and what is allowed, and to ensure that we don’t lose much of the progress that we have seen over the last several decades as we look back at the history of environmental public health protection here in the United States.
The other thing that gives me hope is the people.
As we’ve seen in response to this administration, communities taking a stand for their rights—communities, for example, stand up around the Dakota Access pipeline, as we see communities in urban areas stand up for clean water and clean air—that activity, that energy is what we depend on, and those are the communities that we work with as clients to ensure that we can continue to protect the environmental values and the public health of people across the country.
The hard truth is that this is the worst political situation that the environmental movement has ever faced since the dawn of the environmental movement. We have the most anti-environmental presidential administration since the environmental movement happened, and we have a Congress which is similarly hostile.
Even though our opponents have control of both houses of Congress and the executive branch, they do not control the courts. And we are a nation of laws that everyone has to follow, including you and me, and President Trump.
I derive comfort and inspiration from the fact that we can fight back in court for all these things that matter to us and our children and our children’s children.
I also derive satisfaction from knowing that I am part of the team doing that fighting back. And by team, I mean not just the staff at Earthjustice, but our family of supporters who not only make it possible for us to do the work, but provide the moral backstop for everything that we do.
In electing Donald Trump or electing the people who are currently running the Senate and the House, the voters of this country did not vote for dirty air. They didn’t vote for contaminated drinking water; they didn’t vote to have more severe climate change take place. That’s not what people want.
The depth of commitment to fight back against those things gives me hope. There's a bigger, broader, more active, more diverse movement. Our clients are becoming more numerous and more diverse.
I get hope every day from the depth of commitment to resist. I feel it in the Earthjustice staff, and I feel it in everybody who's part of this broader movement.
Thank you for doing everything that you're doing.