May 26, 2020
Along with millions across the world, Earthjustice’s lawyers, policy experts, scientists, and more, are changing the way we work and live in the face of the COVID-19 pandemic. But whether we are working from home office desks or kitchen tables, Earthjustice will do what we do best: hold accountable those who break environmental laws, and advance the solutions that protect people and the planet, now and for the future.
Read dispatches from across Earthjustice, as we continue our work amidst the public health emergency.
A federal court strikes down another one of the Trump administration’s attempts to give away public lands to industry, a month after Earthjustice attorney Mike Freeman delivered oral arguments virtually.
The U.S. District Court of Montana rules against 440 oil and gas leases that BLM sold as part of its reversal of the landmark 2015 plan to save the greater sage-grouse, an iconic bird species of the western United States.
The protection of sage-grouse habitat is the result of one of the largest conservation efforts in U.S. history, which made a listing under the Endangered Species Act unnecessary for the greater sage-grouse (Centrocercus urophasianus) by setting aside important habitat on public lands to enable the species to survive.
Since taking office in 2017, however, the Trump administration has ignored those protections while offering hundreds of new leases in important sage-grouse habitat. On behalf of our clients, Earthjustice challenged hundreds of oil and gas leases on important sage-grouse habitat on public lands in Montana, Nevada, and Wyoming that were offered in conflict with the safeguards detailed in the landmark 2015 greater sage-grouse conservation plans.
On May 22, the court issued its decision in the legal challenge, invalidating the December 2017 Bureau of Land Management policy directive that has allowed millions of acres of oil and gas leasing in sensitive sage-grouse habitat. Earthjustice is representing Montana Wildlife Federation, the Wilderness Society, National Audubon Society, and National Wildlife Federation.
The sage grouse is a threatened bird and icon of the West’s sweeping sagebrush landscapes. Since the early 1800s, more than half of the sage grouse’s native habitat has been destroyed, and their numbers have plummeted by 97 percent, from an estimated 16 million to less than 500,000.
The White House orders federal agencies to seek out public protections to roll back, change, or eliminate, while in the middle of a global pandemic.
Earthjustice President Abigail Dillen: “We will carefully monitor which rules he and his industry cronies are targeting and respond as necessary using the full force of the law.”
On May 19, the Trump administration issued an executive order requiring agencies to search for rules to suspend in the middle of the global respiratory pandemic that’s killed more than 90,000 people in the United States and forced more than 35 million people into unemployment.
Abigail Dillen, President of Earthjustice, issued the following statement in response to the administration’s announced attack on essential public protections:
“The Trump administration is showing that it won’t let a good crisis go to waste if it can help its friends in dirty industries. Instead of focusing on sound science and sensible public safety recommendations, they’re using an economic downturn aggravated by their own inaction as an excuse to advance a deregulatory agenda that existed long before this pandemic.
“If this administration follows through on its promise to hand out regulatory rollbacks to its corporate polluter allies during the crisis, the country will suffer from those actions long after the COVID-19 pandemic has passed.
“Earthjustice will never stop working to defend and enhance the bedrock environmental protections that the Trump administration is trying to destroy. We will carefully monitor which rules he and his industry cronies are targeting and respond as necessary using the full force of the law."
Temporary restraining order filed to protect threatened salmon in the Klamath River, as a federal agency violates an agreed-upon plan.
“Without these additional flows, we don’t have any hope of saving the salmon,” says Earthjustice attorney Patti Goldman.
The Yurok Tribe, the Pacific Coast Federation of Fishermen’s Associations, and the Institute for Fisheries Resources, represented by Earthjustice, are seeking a temporary restraining order to reinstate water flows in the Klamath River to protect threatened salmon.
Earlier this year, the plaintiffs successfully obtained a new three-year plan from the Bureau of Reclamation for operating the Klamath Irrigation Project to increase springtime flows in the Klamath River. On May 18, however — and without warning — Reclamation shut off the augmented flows required under that plan, pushing the Klamath River to dangerously low water levels and placing juvenile salmon in peril.
“Salmon are in crisis and we absolutely cannot afford to operate the river at minimum flow levels,” said Yurok Tribe Vice-Chairman Frankie Myers. “Reclamation’s unilateral decision to cut off water flows is in clear violation of the plan and comes as a shock, especially given the productive, collaborative meetings to find a way to meet the needs of the salmon.”
A hearing is scheduled May 22, 2020. Klamath River salmon are integral to the Yurok Tribe’s sustenance and way of life.
‘Virtual’ hearings are silencing Indigenous voices.
“I myself was muted after my initial comment,” Martha Itta of Nuiqsut, Alaska, wrote in a letter to BLM following the virtual public hearing, “and they would not unmute me.”
Throughout April, in the thick of the COVID-19 pandemic, the Bureau of Land Management held “virtual” public hearings to gather input on ConocoPhillips’ Willow Project, a massive oil-and-gas drilling plan that will transform a vast expanse of Arctic tundra into a sacrifice zone for industry. Earthjustice is representing Nuiqsut, a tiny Alaska Native village, in litigation against other ConocoPhillips oil and gas development in the region.
The federal government is legally required to give communities a chance to weigh in on decisions that meaningfully affect their environment. But Nuiqsut is just one of a growing number of communities that have struggled to be heard as the Trump administration plows ahead with remote public hearings at a time when many people are sick, caring for family members, or otherwise limited in their ability to participate in virtual meetings.
The oil company’s vision — featuring 50 new oil wells, pipelines, a gravel mine, a network of roads, a lit airstrip, and a temporary offshore island — poses hardship for a community that lives off the land and relies upon traditional hunting practices to sustain themselves. Nor did Nuiqsut residents feel BLM took their concerns seriously during the virtual hearing.
Itta was sheltering in place when she logged onto the hearing, which went forward by phone and video conference despite formal requests for postponement, since remote villages were already scrambling to deal with the COVID-19 crisis.
“We told BLM that many people who wanted to comment could not, because they did not have the proper technology,” Itta explained in her letter to the agency.
By phone, Earthjustice attorney Jenny Harbine will defend tens of thousands of acres of public lands from being given away to the coal industry.
The Montana District Court is closed to visitors, but continues to move cases forward. Judge Brian Morris will hear arguments on appropriate remedy in Citizens for Clean Energy v. U.S. Department of the Interior on May 13 at 2:00pm MT.
“Our legal system remains an important backstop against the abuses of power we’ve witnessed over the course of the past two years,” said Jenny Harbine, the lead Earthjustice attorney on the lawsuit, at the time of the court's ruling in 2019. Last year, the court ruled that the Trump administration violated the law when it overturned the coal-leasing moratorium just two months.
Just two months after taking office, President Trump issued an executive order directing the Department of Interior to resume giving away tens of thousands of acres of public lands to the coal industry, overturning a coal-leasing moratorium put in place by the Obama administration. That’s exactly what the Interior Department did. That same day, on behalf of our clients, Earthjustice filed a lawsuit challenging the illegal order.
The pause in federal coal leasing had been ordered in 2016 by former Interior Secretary Sally Jewell to allow time to review and reform the federal program to ensure protection of the climate. The coal leasing program determines how 570 million publicly-owned acres are leased to coal companies for exploration and mining. It has not been significantly updated since 1979.
The review of the program followed groundbreaking litigation that Earthjustice won in 2014 to force the Bureau of Land Management to consider the climate impacts before issuing a coal lease on public lands in Colorado. More than one-tenth of all U.S. greenhouse gas emissions, the pollution that’s driving climate change, come from coal mined on federal land.
On Apr. 19, 2019, the U.S. District Court for the District of Montana ruled that the Trump administration violated the law when it opened up America's public lands to coal leasing. At that time the court postponed a decision on whether to reinstate the moratorium.
The May 13, 2020, hearing is on appropriate remedy. Briefs have been filed, and a decision is expected in the weeks after the hearing.
Earthjustice attorneys argue back-to-back virtual hearings at the Ninth Circuit Court of Appeals, defending Yellowstone’s grizzly bears and the forest ecosystem of the Pacific Northwest.
In an unusual move now seen more frequently due to the pandemic, oral arguments are heard by video conference.
During the morning's hearings, the questions came quickly and pointedly from the panel of three judges. Oral arguments would normally be conducted in-person, with all parties standing before the judges. The virtual nature of the hearings added layers of complexity, technical and physical. Attorneys have only 20–30 minutes to present their case and respond to questions. Though the hearings were not without hiccups — attorneys and Judge Watford were unexpectedly dropped from the feed for brief moments — technical issues were quickly resolved, and the judges smoothly carried forward the proceeding. The court is expected to issue its rulings in both cases in the coming months.
The courts are adapting quickly and continuing to serve their critically important role, at a time when the administration has not relented in its efforts to strip protections for the environment and our health, while much of the country is focused on addressing the public health crisis. Even the U.S. Supreme Court — for the first time in history — is now holding oral arguments by telephone, with the live audio open to the public.
Seattle-based attorney Kristen Boyles of Earthjustice’s Northwest regional office presented oral arguments Pacific Rivers v. BLM, a key case in federal forestry management to protect the interconnected watershed and species of the Pacific Northwest.
The lawsuit challenges the Bureau of Land Management’s 2016 Resource Management Plans and National Marine Fisheries Service’s Biological Opinion approving the Plans. In those Plans, BLM abandoned aquatic protections that have been in place for 25 years under the Northwest Forest Plan — without analyzing the impact of the change. Precipitated by Earthjustice litigation in the 1980s–1990s, the Northwest Forest Plan’s ecosystem-wide strategy has governed and protected federal public forests in Washington, Oregon, and northern California — and its river systems, salmon, and old-growth dependent species — since its adoption in 1994. Earthjustice has defended the protections from relentless attacks by logging interests. In this lawsuit, Earthjustice is representing Pacific Rivers, Cascadia Wildlands, Coast Range Association, Klamath-Siskiyou Wildlands Center, Oregon Wild, The Wilderness Society, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, and Umpqua Watersheds.
Bozeman-based attorney Tim Preso of Earthjustice’s Northern Rockies Office delivered oral arguments in Crow Indian Tribe v. USA. The Ninth Circuit is hearing the appeal of 2018 ruling by the Montana District Court which found the Trump administration’s decision to strip Endangered Species Act protections from Yellowstone’s grizzlies was illegal.
The U.S. Fish & Wildlife Service’s decision, made in defiance of the best available science, opened the door for grizzlies to be legally trophy hunted in Wyoming, Idaho, and Montana, when the bears cross the invisible boundaries of Yellowstone National Park. Earthjustice filed an immediate legal challenge in federal court, representing the Northern Cheyenne Tribe, Sierra Club, Center for Biological Diversity, and National Parks Conservation Association. The court temporarily halted the trophy hunts the day before they were to begin. By the end of that month, the district court reinstated federal protections to the bears. The ruling is now being appealed. Earthjustice has worked for decades to safeguard Yellowstone’s grizzlies, which are facing massive ecological changes in the Yellowstone region due to climate change.
#GivingTuesdayNow is a new global day of giving created as an emergency response to COVID-19.
Even in the era of social distancing, we can still offer support to those in need.
Rural landowners, farmers, conservationists celebrate court victory halting risky oil and gas giveaway of 150,000 acres of montana public lands.
“Justice won in Montana today,” said Elizabeth Forsyth, lead Earthjustice attorney on the lawsuit.
The federal court’s decision will protect Montanans, their livelihoods, clean water, public lands, and our climate by reversing the Bureau of Land Management’s recent approval of oil and gas leases across staggering swaths of Montana’s public lands.
The Bureau of Land Management’s lease sale would have paved the way for the destructive fracking boom to spread onto 145,063 acres of Montana public lands. The 287 oil and gas leases in the agency’s December 2017 and March 2018 lease sales were part of a rush to sacrifice Montana’s public lands to the Trump administration’s energy dominance agenda.
Rural landowners and conservation groups, including WildEarth Guardians and Montana Environmental Information Center, banded together to fight BLM’s lease sale because of the agency’s failure to take a hard look at the impacts of fracking on Montana’s water quality, water quantity and our climate.
Earthjustice and the Western Environmental Law Center represented the parties in federal district court.
On May 1, a federal judge ruled that the Bureau of Land Management failed to consider risks to Montana’s environment and water supply before issuing the 287 oil and gas leases.
“The Bureau of Land Management was well aware that current oil and gas drilling practices would not protect sources of drinking water in these Montana communities, but rushed the sale anyway,” said Earthjustice attorney Elizabeth Forsyth. “Justice won in Montana today.”
The U.S. Supreme Court rejects the Trump administration’s effort to blow a hole in the Clean Water Act’s protections for rivers, lakes, and oceans.
The decision, in a case argued by Earthjustice attorney David Henkin, solidifies the Clean Water Act’s place as one of the nation’s most effective environmental laws.
The Supreme Court sided with clean water advocates in County of Maui v. Hawaiʻi Wildlife Fund, a case involving a decades-long legal dispute involving a wastewater treatment plant, its pollution discharges, and a partially dead coral reef in Hawaiʻi.
What started as a local water pollution case could have had disastrous repercussions for clean water across the United States.
The U.S. Supreme Court's decision leaves in place vital protections for the nation’s oceans, rivers, and lakes.
The court found that point source discharges to navigable waters through groundwater are regulated under the Clean Water Act. In its decision on County of Maui v. Hawaiʻi Wildlife Fund, the court held that the Clean Water Act “require[s] a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.”
In other words, the Clean Water Act prohibits unpermitted discharge of pollution “into navigable waters, or when the discharge reaches the same result through roughly similar means.”
In doing so, the Court rejected the Trump administration’s polluter-friendly position in the clearest of terms: “We do not see how Congress could have intended to create such a large and obvious loophole in one of the key regulatory innovations of the Clean Water Act.”
The opinion was written by Justice Breyer with a vote of 6-3; with Chief Justice Roberts joining the opinion, along with Ginsburg, Sotomayor, Kagan, and Kavanaugh.
“We are glad the Court has recognized the importance of protecting clean water for all Americans,” said David Henkin, Earthjustice attorney who defended the nation's clean water at the U.S. Supreme Court. Earthjustice represented Hawaiʻi Wildlife Fund, Sierra Club-Maui Group, Surfrider Foundation, and West Maui Preservation Association.
In Florida, Earthjustice attorneys join clean energy and climate justice organizations to call on Gov. DeSantis to ensure that no family has their power turned off during the health emergency.
The state’s power bills rank among the country’s highest. The Connected in Crisis campaign seeks a statewide moratorium on utility disconnects — and calls on the state to deepen investments in solar energy and energy efficiency.
Florida ranks second from the bottom in the Southeast for energy efficiency and well below the national average according to a report by the Southern Alliance for Clean Energy.
Last year, the Florida Public Service Commission held a hearing on approving alarmingly low utility energy efficiency goals — three of which were set at zero. Requiring utilities to set meaningful goals will help ratepayers save energy and money, and create thousands of new jobs across the state.
In reaction, consumers across the state called on Commissioners to enact robust energy efficiency goals. The Commission eventually rejected its own staff recommendations to adopt the energy efficiency goals of zero and voted to maintain the state’s current energy conservation goals through 2025.
Earthjustice attorney Bradley Marshall of the Florida regional office represented the League of United Latin American Citizens and the Southern Alliance for Clean Energy, which intervened to get higher energy efficiency goals.
“We’re at the epicenter of the climate crisis, and we need to do more about it,” Marshall explained. “Floridians have some of the highest energy bills in the country, and energy efficiency is the best way to give Florida families some relief.”
“Communities throughout the State have been demanding more robust goals, and we’ll keep working until all of their voices are heard.”
In a resounding win for science, the D.C. Court of Appeals rules the EPA’s policy of disqualifying leading scientific experts is irrational and illegal.
Earthjustice and the Columbia Environmental Law Clinic challenged the agency’s policy on behalf of scientists and health professionals.
The U.S. Environmental Protection Agency had attempted to exclude independent scientists from its scientific advisory boards, claiming that publicly funded academic scientists have a disqualifying conflict of interest, while allowing scientists paid by polluting industries to serve.
The legal challenge to the EPA’s policy began three years ago. It was appealed to the D.C. Circuit last year. Read the Apr. 21 court ruling. Related cases filed by the Natural Resources Defense Council and Union of Concerned Scientists also challenge the same EPA policy as illegal and arbitrary.
“The court reaffirmed the critical role of independent science committees at the Environmental Protection Agency, and rejected this administration’s extreme argument that it has unreviewable discretion to dismiss independent scientists,” explained Neil Gormley, staff attorney in Earthjustice’s Washington, D.C., Office.
The lawsuit was brought on behalf of Physicians for Social Responsibility, National Hispanic Medical Association, International Society for Children’s Health and the Environment, Edward Avol, Robyn Wilson, and Joe Arvai.
Court: EPA can't get away with gutting the integrity of the science underlying crucial health protections. A win that feels even more poignant amid a global pandemic, where telling the truth about health impacts is life or death. Nice win @NEGormley https://t.co/1U5gRI85c8— Kim Smaczniak (@Smaczni) April 21, 2020
In a win for everyone who likes to breathe, the D.C. Court of Appeals rules that the EPA has a mandatory duty under the Clean Air Act to address all toxic air pollutants — not just the ones it chooses to control.
Legal action to enforce the law was brought by Earthjustice on behalf of community groups in Louisiana and Washington states, and the Sierra Club.
For almost 20 years, the U.S. Environmental Protection Agency had defied the Clean Air Act by leaving many of pulp mills’ emissions — including highly toxic metals like mercury, organic pollutants like dioxins, and acid gases like hydrogen chloride and hydrogen fluoride — completely unregulated.
The agency claimed that it was authorized — but not required — to set limits for these uncontrolled pollutants. The D.C. Court of Appeals rejected that argument and affirmed that the EPA has a mandatory duty under the Clean Air Act to address all toxic air pollutants.
There are about 100 pulp mills currently operating in the United States, and each year they emit roughly 23 million pounds of hazardous air pollutants, including benzene, mercury, and the potent carcinogen dioxin.
Because of EPA’s decades-long refusal to bring its emission standards into compliance with the Clean Air Act, much of this pollution remains completely uncontrolled.
Mercury exposure can damage the developing brain of children and fetus. The organic pollutants emitted by pulp mills can cause cancer, birth defects, and developmental damage in babies and children.
“Communities living near pulp mills badly needed the protections that the Clean Air Act was intended to provide, and it is immoral that the EPA tried to shirk its duty to protect people from toxic air pollution,” said James Pew, the lead Earthjustice attorney on the lawsuit. “This decision will bring some relief for communities at last by requiring the EPA do its job and limit uncontrolled toxic pollution.”
Earthjustice sues over an unlawful de facto bailout of coal and gas power plants.
The Federal Energy Regulatory Commission’s rule will likely to force 65 million families to pay billions of dollars more for electricity.
“In the wake of millions who have lost their jobs or cannot work due to the pandemic, the Federal Energy Regulatory Commission says, ‘Let them eat cake.’ FERC’s decision to saddle families and small businesses with billions of dollars in unnecessary rate hikes is a failure in its primary duty to protect customers,” said Danielle Fidler, a staff attorney in the Clean Energy Program and the lead Earthjustice attorney on the lawsuit.
The lawsuit, filed in the U.S. Court of Appeals for the District of Columbia Circuit, challenges the Federal Energy Regulatory Commission’s order that PJM, the grid operator for 13 states and the District of Columbia, adopt a revised “Minimum Offer Price Rule.” The order imposes an artificially high minimum price that power generators receiving state subsidies must meet in order to bid into the capacity markets.
FERC's order is likely to limit or bar state-supported solar, wind and nuclear plants from participating in the capacity markets. Even as states build towards a carbon-free future, this rule will force consumers to keep paying for dirty, obsolete power plants.
Under the cover of COVID-19, Trump’s EPA approves more mercury in the air by gutting a landmark clean air standard.
Earthjustice is planning to sue in response to this attack.
The Environmental Protection Agency finalized their plan to gut the Mercury and Air Toxics Standards, which regulates toxic emissions from coal- and oil-fired power plants. Earthjustice has worked in the courts for decades to clean up America's worst toxic polluters, including coal-fired power plants.
Since the protections were put in place in 2011, it drastically reduced mercury and other air pollutants, which are linked to breathing illnesses, heart disease, and cancer, among other health impacts. It is estimated that the Mercury and Air Toxics Standards has saved as many as 11,000 lives each year.
The announcement comes as the country is reeling from the global coronavirus pandemic, a respiratory illness that’s caused more than 20,000 deaths in the United States.
EPA Administrator Andrew Wheeler, a former coal lobbyist, is withdrawing the findings that it is “appropriate and necessary” to regulate these power plants’ hazardous emissions by using a new cost-benefit analysis with “deep flaws,” according to economists. Erasing a science-based cost-benefit analysis puts communities at risk at a time when they need the most protection from harmful air pollution.
“Administrator Wheeler chose to put the lives and health of people living in the United States at risk. A former coal lobbyist, Wheeler found it was not ’appropriate’ for EPA to have issued the Mercury and Air Toxics Standards, even though mercury harms children’s developing brains,” said Earthjustice attorney James Pew, who has led the 20-year battle to establish the regulations.
“This deeply irresponsible finding seeks to sabotage the rules by inviting court challenges from Wheeler’s former clients, and the Trump administration’s donors and allies. If the sabotage succeeds, people throughout the U.S. will die unnecessarily each year, literally wheezing, gasping for air, and choking to death.”
EPA’s own analysis underscores the public health benefits of air pollution regulations.
While the pandemic has brought many aspects of society to a halt, the Trump administration’s efforts to give away public lands to industry have not stopped – and neither has Earthjustice’s work to enforce environmental laws.
Attorney Michael Freeman delivered oral arguments by phone, challenging BLM’s disregard of legally binding land management plans adopted to protect the greater sage-grouse.
Although many courts across the country have delayed or rescheduled proceedings, the U.S. District Court of Montana is continuing work on many important cases — including Earthjustice’s lawsuit challenging the administration’s decision to lease sensitive sage-grouse habitat for drilling.
In light of public health precautions, the court conducted the Apr. 15 hearing on the motion for summary judgment with all parties — including the court reporter — calling into a phone conference line.
Even with the unusual circumstances, the court continued to honor one of the unique features of the United States court system — ensuring hearings areaccessible to the public — by opening the phone conference line for interested members of the public and reporters to hear the arguments as they took place.
During the hearing, Judge Brian Morris asked a number of questions, allowing the parties to delve into the issues at stake. The lawsuit challenges hundreds of oil and gas leases on important sage-grouse habitat on public lands in Montana, Nevada, and Wyoming that were offered in conflict with the safeguards detailed in the landmark 2015 greater sage-grouse conservation plans.
The protection of sage-grouse habitat is the result of one of the largest conservation efforts in U.S. history, which made a listing under the Endangered Species Act unnecessary for the greater sage-grouse (Centrocercus urophasianus) by setting aside important habitat on public lands to enable the species to survive.
Since taking office in 2017, however, the Trump administration has ignored those protections while offering hundreds of new leases in important sage-grouse habitat.
“While people across the country are grappling with the economic and public health crisis, the administration is not putting the brakes on efforts to dismantle protections and lease public lands for oil and gas,” explained Michael Freeman, the lead Earthjustice attorney on the lawsuit. Earthjustice is representing the Montana Wildlife Federation, Montana Audubon, the Wilderness Society, National Audubon Society, and National Wildlife Federation.
The court is expected to issue its ruling at any time.
A federal court stands up for kids, as the COVID-19 crisis keeps kids out of school and interrupts their ability to access a vital source of affordable nutrition.
A Trump administration policy to reduce school nutrition standards is struck down by the court. Earthjustice filed an amicus brief in the lawsuit, highlighting the importance of science-backed standards.
More than 30 million children eat school meals each day. The U.S. District Court for the District of Maryland vacated the Trump administration rule gutting nutrition standards for school meals, published by the U.S. Department of Agriculture, because the agency failed to provide adequate notice of its intent to eliminate Obama-era targets for sodium reduction and whole grain availability.
“It is USDA’s job to make sure our schools have the support and encouragement they need to offer nutritious meals, and the agency shouldn’t have eliminated science-backed nutrition standards without giving the public a fair chance to comment,” explained Alexis Andiman, Earthjustice attorney with the Sustainable Food & Farming Program. “We applaud the court for standing up for kids.”
Earthjustice filed an amicus brief on behalf of the American Heart Association, American Public Health Association, FoodCorps, MomsRising, and National Education Association.
School meals are especially important for low-income children; an estimated 75% of school lunches and 85% of school breakfasts are provided free or at a reduced price to children living in low-income households.
Air pollution makes COVID-19 more deadly
Staff Scientist Rashmi Joglekar explains how a new Harvard study adds to a growing pile of evidence that we must enforce stricter regulations on toxic emissions to save lives. For more than four decades, Earthjustice litigation has worked to clean up the air we breathe by enforcing the Clean Air Act and making dirty industries clean up their pollution.
At EPA’s phone-in public hearing on weakening safeguards against toxic coal ash, Earthjustice attorney Lisa Evans reads a statement excoriating the agency.
“Do you expect someone who has fallen ill or has a sick family member to be on the phone today? What about the healthcare workers, the parents who are busy trying to home-school their children? … The EPA has suspended enforcement of environmental laws — yet the agency somehow expects communities to submit comments and participate in these hearings, amid the pandemic.“
The hearing was held on the proposed rule, “A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments; Implementation of Closure,” one of six proposals by the U.S. Environmental Protection Agency to weaken federal standards that protect people from toxic coal ash. The EPA is taking comments from the public for six more days.
The agency is not holding any in-person hearings on this rulemaking. The U.S. Environmental Protection Agency’s failure to hold in-person public hearings is unprecedented and contrary to law and public policy. A month earlier, Earthjustice sent a formal letter on behalf of more than 60 public-interest groups to the EPA, calling for genuine, in-person hearings after the pandemic crisis had passed, and an extension of the 45-day public comment period to 120 days.
If finalized, the proposal will weaken critical protections, allowing operators to continue to dump millions of tons of toxic coal ash waste in unlined, leaking pits — including those currently required to close due to leaking, instability or dangerous siting. When rainwater passes through coal ash sludge, toxic chemicals seep into groundwater. Coal ash contains carcinogens such as arsenic, and neurotoxins such as lead and lithium
The full statement read by Lisa Evans, senior counsel at Earthjustice, during the phone-in public hearing:
"62 groups, representing more than 9.5 million members, declare together our opposition to the Trump administration's holding of this virtual public hearing in the midst of the global COVID-19 pandemic, when Americans nationwide are unable to exercise their right to participate.
“Although all 62 organizations strongly oppose the Part B Proposal, many of our members are unable to speak to you today due to obstacles presented by the COVID-19 pandemic. Do you expect someone who has fallen ill or has a sick family member to be on the phone today? What about the healthcare workers, the parents who are busy trying to home-school their children and the millions of Americans who are so worried that it’s hard to think about anything else?
“During this global pandemic and national health emergency, the EPA's actions to weaken health and environmental protections from coal ash pollution are unconscionable. The EPA should be working to make Americans safer, not endanger them further by throwing protections from toxic pollution out the window.
“The Part B Proposal will expose more Americans to hazardous pollution from coal ash, including to carcinogens like arsenic, hexavalent chromium and radium; neurotoxins like lithium and lead, and poisons that kill fish and wildlife like selenium and cadmium.
“We ask EPA to stop trying to gut the public health protections in the Coal Ash Rule, and instead strengthen the rule, as ordered by the federal Court of Appeals.
“The EPA has suspended enforcement of environmental laws, no longer expecting compliance with routine monitoring and reporting of pollution with no end date in sight — yet the agency somehow expects communities to timely submit comments and participate in these hearings amid the pandemic. The Trump administration should press pause on this dangerous plan, extend the comment period, and give Americans a meaningful chance to weigh in when the crisis is over."
One more of EPA’s six proposals to weaken coal ash safeguards remains open to public comment: “Proposed Rule for Disposal of Coal Combustion Residuals from Electric Utilities; Federal CCR Permit Program.” A virtual hearing will take place on April 15. On April 6, the agency issued a prepublication extension of the comment period of this proposal, to May 20.
“New York needs to ensure water is accessible to all New Yorkers.”
Earthjustice’s Northeast office, based in New York City, joins 75 public-interest organizations and unions in calling on Gov. Cuomo to issue an Executive Order for a moratorium on water shut-offs and the safe restoration of water service.
Clean water is essential to keep communities safe and healthy during the COVID-19 pandemic. A water shut-off moratorium covering all public and private water systems in the state is needed immediately. Similar orders have already been issued in nine other states, including California and Michigan.
At a time when hand-washing and proper hygiene is key to stopping the spread of the coronavirus, all state residents must have access to clean water in their homes.
Additionally, water service to homes currently impacted by water shut-off must have service safely and proactively restored. The letter explains that only one public water system in the state has committed to proactive restoration, underscoring the need for a statewide order.
After a somber week, a quiet ray of clean energy hope emerges from the Sunflower State.
In public utility commissions across the country, good lawyers are making an outsized impact on our climate future. Today, it was in Kansas.
Families who seek to generate their own clean energy from the free sunshine delivered to their roofs every day, can do so without fear of discriminatory charges from their utility, ruled the Kansas Supreme Court when it reversed a utility commission’s decision.
American energy law prohibits discrimination against new market players, yet current laws and policies are too often stacked against clean energy, in favor of fossil fuels. Utility lobbyists are driving a national trend of charging fees on customers who offset their utility purchases by installing their own solar and wind generation.
“Distributed generation” of energy, such as rooftop solar, threatens utilities’ control of the grid, making it a prime target of attacks.
“As the Kansas Supreme Court recognized, charging solar customers more for their electricity is price discrimination, plain and simple,” explained attorney David Bender of Earthjustice’s Clean Energy Program, who argued the case before the high court just four months earlier. Bender represented the Sierra Club and Vote Solar in challenging a decision in 2018 by the Kansas Corporation Commission that approved extra fees on residential customers who had installed solar.
Much of our nation’s energy policy is crafted at the state level by public utility commissions, like the Kansas Corporation Commission. Utility commissioners decide whether customers like you and me will be forced to pay for power from a dirty coal plant, or benefit from money-saving energy efficiency programs, or generate our own electricity affordably with rooftop solar.
Earthjustice attorneys, in partnership with state and regional partners, are crisscrossing the country making the case for clean energy in these often overlooked but immensely important regulatory forums.
Kansas’ high court ruled that utilities cannot charge customers who generate their own power more than customers who do not. The court reversed the judgment of the Kansas Corporation Commission and remanded the matter back to the Commission.
A careful journey to a Seattle post office sets in motion Earthjustice’s work to stave off extinction of Pacific oceanic whitetip sharks.
Federal rules require that the legal summons and complaint must be served by registered postal mail, necessitating one of the few trips still permitted under “stay-at-home” orders.
The federal lawsuit, filed by Earthjustice on behalf of Conservation Council for Hawaiʻi and Michael Nakachi, a Native Hawaiian cultural practitioner and owner of a local scuba diving company, aims to force the National Marine Fisheries Service to take long-delayed action to protect oceanic whitetip sharks.
“As a kahu manō [guardian to the shark)], I feel a personal responsibility to speak up on this issue,” explained Nakachi, a Native Hawaiian cultural practitioner and owner of a local scuba diving company. “But I believe we all share a duty to ensure the survival of this sacred animal.”
The once-abundant oceanic whitetip shark has roamed the seas for millions of years. Today, its population is declining precipitously due to fishing pressures, falling 80%–95% since the mid-1990s. A female oceanic whitetip can take nine years to reach sexual maturity, typically only giving birth every other year after a gestation period of 10–12 months.
The lawsuit was filed by Earthjustice attorneys coordinating work from three states and across the Pacific Ocean, with the service packets posted via the required registered mail from Seattle, Wash., in a post office visit taken with the necessary health precautions.
Along with all of Earthjustice's locations, the Seattle office has been closed since mid-March, with all staff working from home. Washington State's “stay-at-home” order permits certain essential infrastructure services to continue, including “professional services, such as legal … services, when necessary to assist in compliance with legally mandated activities.”
Access to affordable clean water is among the many recommendations sent to Congress by 101 public-interest organizations and municipalities, urging equitable and just stimulus spending in response to the pandemic.
Earthjustice joins the letter in calling for environmental justice communities, Tribal communities, low-income communities, and communities of color to be prioritized, as they are hit hardest by economic downturns and are particularly vulnerable to COVID-19.
Critical work to advance the rise of renewable energy continues, with a few adjustments.
Due to public health concerns, attorneys move to a virtual venue to determine how and when a key “rate case” will proceed.
In Arizona, Tucson Electric Power is seeking to increase its retail revenues, resulting in increases in the monthly bills of typical residential customers. “Rate cases” determine if a utility is charging its customers fairly on their electricity bills.
Attorney Michael Hiatt of the Rocky Mountain Regional Office phoned in to the remote hearing to represent our client Vote Solar. This case continues Earthjustice’s years-long efforts to protect rooftop solar and to ensure that the thousands of Arizonans who support solar have a voice in the utilities' proceedings. (Read our short guide to understanding the practices and policies that influence clean energy growth.)
The Mar. 31 procedural conference, held by the Arizona Corporation Commission, determined how the case’s schedule should be adjusted during the national emergency. Due to the pandemic, the Commission decided to delay the upcoming hearing dates, from April to June. The Commission and the parties noted that further delays may be necessary.
Public utility commissions regulate utilities and play a major role in clean energy policy. They implement energy laws and are where decisions about clean energy versus dirty energy get made. Tucson Electric Power is one of many utilities that have proposed regressive policies and rate hikes that would severely undermine the continued growth of rooftop solar.
Earthjustice attorneys work extensively in utility commissions throughout the country, from Arizona to Ohio, West Virginia to California, to break down legal barriers to clean power, and to fight utility proposals that could cost customers billions of dollars on their utility bills while guaranteeing profits for fossil fuel industry shareholders.
Even as the COVID-19 health crisis worsens, the Trump administration finalizes rules to weaken greenhouse gas and fuel economy standards for new cars and light trucks.
The action will dramatically increase air pollution and accelerate the climate crisis. “We’ll see the Trump administration in court,” responds Earthjustice attorney Paul Cort.
The rules are the latest of many that the administration has pushed forward — including limiting the use of science and weakening safeguards on toxic coal ash — in the middle of the public health crisis. (Read analysis of how industries are lobbying to loosen environmental safeguards and waive monitoring requirements.)
According to reporting by the New York Times, government staff “described a relentless atmosphere at the Environmental Protection Agency and the Interior Department. Several people said they had been told to expect no ‘slippage’ or relaxation of deadlines, although thousands of federal employees, like much of the nation, are working from home and juggling child care and work responsibilities.”
The administration is rolling back clean car standards and, strikingly, is trying to stop states from leading efforts to clean up our air through vehicle emissions protections. “This move undercuts one of our most important tools to solve the climate crisis,” said Earthjustice attorney Paul Cort, an expert on energy and air quality issues. “We’ll see the Trump administration in court.”
Tuesday’s announcement comes despite opposition from automakers, 18 states, and the District of Columbia. The Obama-era “Clean Car Standards” had been slated to create approximately 650,000 jobs, save consumers about $50 billion in 2030, and reduce climate pollution by 280 million metric tons in 2030. (Read an explainer of this issue.)
In the time of a pandemic, clean air is more popular than ever.
Earthjustice, along with public health and environmental organizations, delivers a letter to the California Air Resources Board urging the agency to stay the course on life-saving clean air regulations, as industry requests delays.
Just submitted a letter to @MaryNicholsCA & other @AirResources Board members asking the agency to stay the course in passing life-saving clean air regs in spite of polluting industries asking for delays. 55 groups signed - clean air is VERY popular.#JustTryingToBreathe pic.twitter.com/yq5Pnd2stZ— Adriano L. Martinez (@LASmogGuy) March 31, 2020
In the Western Arctic, the BLM rushes forward a massive oil drilling plan. Earthjustice’s Alaska-based attorneys and our partners have defended the Arctic for decades — and continue to do so even in the midst of the national health emergency.
A formal letter requests that the 45-day comment period — opened during the health crisis — be suspended. “To be clear, holding the minimally required public comment period in the middle of a global health crisis does not support public participation; it suppresses it.”
The Western Arctic is the largest tract of undisturbed public land in the United States, home to caribou, threatened polar bears, walruses, and endangered beluga whales. Alaska Native communities have lived and thrived in the region for thousands of years.
It is also home to the famed Teshekpuk Lake. Millions of birds gather in the wetlands around the lake to nest and rear their young, and to rest and feed during migration. Among them are American Golden-Plovers that spend the winter in Argentina, Dunlins in Japan, and Tundra Swans in North Carolina.
Earthjustice has gone to court several times to defend the Western Arctic, including securing protections for Teshekpuk Lake more than a decade ago. In recent years, Trump’s Department of Interior has opened the door to significant expansion of industrial activity in the region, offering more than 12 million acres for oil and gas leasing in two lease sales held in 2017 and 2018.
One oil company, ConocoPhillips, holds most of the leases in the Western Arctic. The company’s proposed “Willow Master Development Plan” will likely to have significant impacts on the region. The BLM deadline for the 45-day comment period is May 4. (Submit your comment.)
With the many looming threats to the Arctic, it’s here in the Western Arctic that the oil industry is already making investments and proposing to drill in sensitive areas now. But there’s reason for hope: We’ve persuaded courts to keep this land wild before, and we will continue to fight to defend the Western Arctic.
What EPA’s ‘enforcement discretion’ during the COVID-19 crisis really means.
Earthjustice’s Patrice Simms examined the agency’s new policy in the hours after it was issued. The EPA signals an intention to forgo enforcement of environmental laws and “invites industry to try to justify any and all noncompliance with almost any environmental obligation.”
Simms explains that although the agency has used this tool in the past, “the sheer breadth of the enforcement discretion is astounding … the policy, strikingly, has no end date.” Many who will be most affected by the new lack of enforcement are also most in harm’s way from the health and economic burdens imposed by the COVID-19 crisis itself.
Additionally, the new policy lacks detailed justification and transparency, including how “the EPA limits the policy neither to specific facilities or particular facility types, nor along any geographic or exposure-related parameters.”
One of the EPA’s primary functions under the law is the enforcement of federal statutory obligations relating to environmental and public health protection. Patrice Simms, Earthjustice’s VP of Litigation for Healthy Communities, previously served as an attorney in the EPA’s Office of General Counsel.
After an unusual day in court due to social distancing measures, the Standing Rock Sioux Tribe’s challenge of the Dakota Access Pipeline advances with a significant victory.
Although many state and federal courts are delaying proceedings as the pandemic unfolds, the Standing Rock Sioux Tribe’s challenge to the Dakota Access pipeline progresses.
A week after Earthjustice attorney Jan Hasselman delivered oral arguments over the telephone to the D.C. District Court, the court issued a ruling on Mar. 25, striking down federal permits for the controversial Dakota Access Pipeline.
Due to public health concerns, the Mar. 18 court hearing — which normally would have been conducted with both parties standing before the federal judge in Washington, D.C. — took place entirely over the phone, despite demands by Dakota Access’s lawyers to force an in-person hearing.
On the day of the hearing, Seattle-based Hasselman presented his case and answered the judge’s questions, surrounded by fact sheets and regulatory citations taped to the wall of his home office. Read the full account of the virtual hearing. (One intrepid D.C.-based reporter took the necessary precautions and covered the hearing — read Ellen Gilmer’s reporting of the not-so-average day in court.)
On Mar. 25, the Court found that the U.S. Army Corps of Engineers violated the National Environmental Policy Act, and also found significant unresolved concerns about the potential impacts of oil spills. The Corps was ordered to prepare a full Environmental Impact Statement on the pipeline, something that the Tribe has sought from the beginning of this controversy.
“After years of commitment to defending our water and earth, we welcome this news of a significant legal win,” said Standing Rock Sioux Tribe Chairman Mike Faith. “It’s humbling to see how actions we took four years ago to defend our ancestral homeland continue to inspire national conversations about how our choices ultimately affect this planet.”
“We will continue to see this through until DAPL has finally been shut down,” added Earthjustice attorney Jan Hasselman.
The Court requested additional briefing on the question of whether to shut down the pipeline while an EIS is being completed. The issue will be fully briefed by May 27, with a decision expected sometime after that.
EPA publishes a second proposal aimed at limiting its use of science, even as the spread of the novel coronavirus demands the full attention of scientists and health professionals.
Working remotely in Washington, D.C., and New York City, Earthjustice attorneys coordinate efforts with 36 environmental and public health organizations to send a detailed request to the agency to withdraw the proposed rule.
Under the proposal, the U.S. Environmental Protection Agency would, in many cases, be precluded from relying on scientific studies as the basis for establishing public health protections.
In order for the EPA to understand the implications of such a regulation, it must hear from the nation’s scientists and health experts — the very people who are now on the frontlines of a pandemic where studies of the sort the EPA seeks to exclude are a critical source of life-saving information about COVID-19.
Additionally, the agency granted members of the public — including the scientists and health professionals whose work would be directly impacted by the proposal — a mere thirty days to submit their comments on the rule — an inadequate amount of time given the scope of the rulemaking and the constraints imposed by the current crisis.
The letter was submitted on behalf of Alaska Community Action on Toxics, Alliance of Nurses for Healthy Environments, Appalachian Trail Conservancy, Asbestos Disease Awareness Organization, Breast Cancer Prevention Partners, Center for Environmental Health, Clean and Healthy New York, Clean Water Action California, Clean Water Action/Clean Water Fund, Commonweal Biomonitoring Resources, Defenders of Wildlife, Earthworks, Environmental Working Group, Environmental Health Strategy Center, Farmworker Association of Florida, Greenpeace, Healthy Babies Bright Futures, Healthy Building Network, Huntington Breast Cancer Action Coalition, Inc., League of Conservation Voters, National Wildlife Federation, Natural Resources Defense Council, New York Public Interest Research Group, Ocean Conservancy, Ocean Conservation Research, Oregon Environmental Council, Pesticide Action Network North America, RH White Consultants, Safer Chemicals Healthy Families, Safer States, Science and Environmental Health Network, Seventh Generation, Toxic Free North Carolina, Vermont Conservation Voters, and Western Environmental Law Center.
In light of the national emergency, federal offices from the Supreme Court to the Internal Revenue Service are extending deadlines. The EPA is asked to do the same for two recently proposed regulations that threaten the health of millions.
The proposals weaken critical protections on the toxic waste known as coal ash. Formal letters, sent by Earthjustice and dozens of health, science, and environmental groups, publicly call on the agency to fulfill its central mission to protect public health and the environment.
Even in the middle of the national public health emergency, the U.S. Environmental Protection Agency is working with unprecedented speed on a multi-pronged attack to reverse hard-won safeguards against coal ash, the toxic waste that remains after coal is burned to generate electricity. It is one of the largest toxic waste streams generated in the United States.
Deadlines to submit technical comments analyzing the agency’s coal ash rulemakings that were difficult to meet initially due to the short length of the comment period provided, have now become impossible for many. (Read a guide to the recent attacks on coal ash protections, and the technical comments Earthjustice and our partners have filed thus far opposing the rules.)
The requested extensions are critically important for millions of Americans — including staff and members of the organizations who joined the letters — who are attempting to stay safe and find a way to continue working under unprecedented conditions, while complying with critical health mandates from federal, state, and local officials.
The agency has issued six proposals over an eight-month period that would substantially weaken coal ash rules.
The two proposed rules that are still open for comment are complex and highly technical, involving subject matter that requires expertise in fields such as hydrogeology and engineering to fully evaluate and comment.
- “A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments; Implementation of Closure,” EPA-HQ-OLEM-2019-0173. The EPA deadline for the 45-day comment period is April 17. (Submit your comment.)
- “Proposed Rule for Disposal of Coal Combustion Residuals from Electric Utilities; Federal CCR Permit Program,” EPA-HQ-OLEM-2019-0361. The EPA deadline for the 60-day comment period is April 20. (Submit your comment.)
The letters request a 120-day extension of the comment periods.
The Mar. 23 letter was sent to EPA Administrator Andrew Wheeler by Earthjustice, alongside Waterkeeper Alliance, League of Conservation Voters, Southern Environmental Law Center, Sierra Club, Clean Water Action, Environmental Integrity Project, Prairie Rivers Network, Eco-Justice Collaborative, Clean Power Lake County, Faith in Place Action Fund, and Environmental Law & Policy Center.
The Mar. 6 letter was sent on behalf of 66 groups.
As the global health crisis spreads and on the eve of the 10-year memorial of the BP Deepwater Horizon disaster, the administration holds an oil and gas lease sale auction in the Gulf of Mexico. It is immediately challenged in court.
The lawsuit is the latest of several by Earthjustice and our clients, challenging the illegal expansion of offshore drilling in the Gulf.
78 million acres are offered in this most recent lease sale alone. The Trump administration has been offering all available unleased acreage in the Gulf — essentially everything but the continental shelf off the Florida coast. “This is yet another example of the Trump administration putting profits before the health and safety of people and the planet,” said Earthjustice attorney Brettny Hardy of the Oceans Program.
The Mar. 18 lawsuit challenges the Department of the Interior’s flawed analyses of the sales’ environmental effects, which rely on incorrect assumptions about safety regulations and royalty rates that would apply to the leases.
It follows earlier challenges filed by Earthjustice in 2018 and 2019 that challenge federal officials’ illegal expansion of Gulf drilling without fully analyzing the risks to people, wildlife, or the environment.
A ruling on the earlier lawsuit is expected at anytime from Judge Reggie B. Walton of the U.S. District Court for the District of Columbia. That lawsuit and supplemental complaint were filed by Earthjustice, on behalf of Healthy Gulf, Sierra Club, and the Center for Biological Diversity.
Last year, the administration rolled back offshore-drilling safety rules that were created in response to the 2010 BP Deepwater Horizon disaster. That rollback of protections is also being challenged in court by Earthjustice.
An injunction is filed to halt construction at a San Bernardino air cargo facility, which continued despite the dangers of the novel coronavirus.
Earthjustice’s Los Angeles-based attorneys filed the motion on behalf of our clients Center for Community Action & Environmental Justice, Sierra Club, and Teamsters Local 1932.
First motion for stay pending review I’ve ever filed while practicing social distancing. I was not in the office next to @Earthjustice attorney @AgelidisYasmine but I felt her powerful lawyering from miles away.— Adriano L. Martinez (@LASmogGuy) March 18, 2020
Thanks to our brave clients @CCAEJ @MyGenerationSC @1932teamsters pic.twitter.com/ruXUEtzWln
Two days into remote work, Earthjustice sues the EPA for unlawfully and repeatedly concealing documents on potentially dangerous chemicals.
Hundreds of chemicals have been approved each year. In one instance, the agency approved — without restrictions and while hiding all studies — a new PFAS chemical.
Once a chemical is approved, it becomes nearly impossible to pull it off the market, and remove it from the environment and, sometimes, our bodies, as the ongoing PFAS contamination crisis shows. The unlawful secrecy prevents the public from weighing in, making it much more likely that dangerous chemicals are reaching the market.
- Does not alert the public when a new chemical is under review and may soon be approved to go on the market, as required by law.
- Allows companies to conceal crucial information about chemicals under review, especially health and safety information.
- Does not audit companies’ “confidential business information” claims to determine whether they are warranted, encouraging companies’ unlawful attempts to hide information that should be public.
The lawsuit challenges the EPA for violating the Toxic Substances Control Act and ignoring transparency rules. The Toxic Substances Control Act grants the public a right to know and provide input about new chemicals the EPA is reviewing.
Attorneys in Earthjustice’s Toxic Exposure and Health Program are representing the Environmental Health Strategy Center, Center for Environmental Health, Natural Resources Defense Council, Environmental Defense Fund, and the Sierra Club.
Earthjustice’s 14 offices close, and hundreds of staff shift to remote work to help limit the spread of the novel coronavirus.
The decision, made in accordance with recommendations from local and national public health authorities, seeks to keep our staff, families, and neighbors safe, and to honor our social responsibility.
From a message by Earthjustice President Abigail Dillen: “On behalf of our entire staff, I want to underscore how deeply we appreciate all of you and extend our heartfelt well-wishes. While it is impossible to forecast the future, we can anticipate that attacks on the environment, our bedrock laws, science-based governance — and the rule of law itself — will continue.”
Learn more about the office closures.