When President Obama moves out of 1600 Pennsylvania Ave. next January, his environmental legacy won’t be entirely clear.
As his administration winds down, some of its blockbuster air and water regulations remain mired in court fights that are unlikely to end until well after the Obama team has packed up. That means the fate of some of the president’s biggest rules — ranging from limiting greenhouse gases from power plants to a major water rule and national smog limits — could be determined by judges or the next occupant of the White House.
It’s typical for presidents to leave office with outstanding regulatory business before the courts. But the Obama administration ushered in hefty environmental rules that quickly fueled major court battles. Some of those rules have been frozen by federal judges, adding to the uncertainty.
"I would be very surprised if there’s ever been this many major rules pending in court" at the end of an administration, said Jeff Holmstead, an industry attorney at Bracewell who served as U.S. EPA’s top air regulator during the George W. Bush administration.
"I don’t think we’ll really know what the bottom line is on this for a couple of years," said Bob Sussman, a former top EPA official in both the Obama and Clinton administrations. "We have all of this stuff up in the air."
Obama and his top environmental staffers will watch from the sidelines as it all plays out.
"Obviously there’s some frustration there, because when you leave, you want to feel that you’ve finished the job," Sussman said. "If there are these unresolved pieces, then you can’t completely say that."
Government employees — particularly career staffers who have worked through multiple administrations — "understand that this is a fact of life," Sussman said. As for Obama’s political staffers, they’re "certainly going to be interested in what happens after they’re gone," he added.
Some of the highest-profile rules still in limbo: the Clean Power Plan and Clean Water Rule, aimed — respectively — at slashing power plants’ greenhouse gas emissions and defining which waters are subject to Clean Water Act permitting.
Both rules drew heavy fire from states and industry groups and are expected to be ultimately decided by the Supreme Court after Obama leaves office. And both have been stalled by judges while the litigation plays out. Freezing rules often signals that judges think challengers are likely to prevail, but the government and its allies insist they’re on firm legal footing in both cases.
There is much at stake with both stalled policies. EPA pegs the cost of the Clean Power Plan at about $8 billion annually in 2030, when the rule would be fully in place. The agency also estimates that the benefits of the rule — based in part on reductions of soot- and smog-forming pollutants — will be worth between $34 billion and $54 billion per year in 2030.
The administration has touted the water rule from EPA and the Army Corps of Engineers as a major step toward offering regulatory certainty while protecting drinking water and waterways. A wide range of industries, meanwhile, contend that the regulation will cause massive economic harm and does little to clear up widespread confusion about water permitting.
The Clean Power Plan case is now pending in the U.S. Court of Appeals for the District of Columbia Circuit, with oral arguments slated for next month and a decision likely later this year. That decision could then face appeals in the D.C. Circuit before likely being appealed to the Supreme Court. A ruling from the high court isn’t expected until 2017 or possibly even 2018.
Federal courts haven’t yet tackled the merits of the challenges against the water rule, as courts across the country have been grappling with where those cases belong. Litigation over that rule is also seen as a likely contender for Supreme Court review, although it could take a year or more before that case has worked its way through the legal system, with a possible decision from the high court in 2017 or 2018.
Those rules aren’t alone in awaiting court action.
EPA’s ozone standard, which was finalized last fall, is being challenged by industry and environmentalists alike in the D.C. Circuit. That rule’s estimated price tag is $1.4 billion per year nationwide in 2025 in all states except California, according to the agency. EPA estimates the benefits will be between $2.9 billion and $5.9 billion per year by 2025.
States, industries and environmental and public health groups have been ordered to submit their final legal arguments to the D.C. Circuit by September in that case, which may be among those still pending when Obama leaves office.
The Bureau of Land Management is also defending its rule for hydraulic fracturing on federal and tribal lands in court against challenges from states, industry and the Ute Tribe. Lawsuits over that rule are pending in the U.S. District Court for the District of Wyoming, as is a related battle at the 10th U.S. Circuit Court of Appeals, where the government is trying to reverse the district court’s decision to freeze the rule during litigation. The district court’s decision questioned whether BLM has any authority over fracking on public lands (EnergyWire, April 20).
Also looming is a likely legal fight over new EPA rules aimed at curbing methane emissions from new oil and gas operations (Greenwire, May 12).
The final methane rules were announced last week and — like most major environmental rules — will likely be challenged in court by critics with lawsuits still pending when the administration departs.
Those are just some of the many environmental rules still subject to court battles that could drag into the next administration, according to legal experts.
‘Key rules could be undone’
For administration officials who have toiled over those rules, "it’s very frustrating" to leave while they’re still in legal limbo, Holmstead said.
"I’m sure that [EPA Administrator] Gina McCarthy and everyone else is very aware that some of their key rules could be undone if there’s a Republican administration," he added. "That’s especially true if they’re still pending in court."
A Democrat who wins the presidency in November would likely support the pending environmental rules and continue to play defense in court. If Donald Trump, the presumptive Republican presidential nominee, wins, he could reverse course and stop defending the regulations in court.
The Obama administration took advantage of pending legal fights over major Bush administration environmental rules.
Take, for example, a case over a contentious Bush-era rule to limit toxic air pollution from power plants.
The D.C. Circuit invalidated the Clean Air Mercury Rule in 2008 after critics argued it wasn’t stringent enough. The Bush administration asked the Supreme Court to review that ruling in October 2008, just a few months before leaving office.
In the early weeks of the Obama administration — in February 2009 — government attorneys asked the Supreme Court to dismiss the request from the Bush EPA and utilities to hear the appeal. Obama attorneys said EPA planned to change course, requiring tougher plant-specific pollution limits instead of the more flexible cap-and-trade approach used by the Bush administration.
Later that month, the high court denied industry’s request to reconsider the lower court’s move to toss out the rule.
Even if the D.C. Circuit had upheld the mercury rule and it was being challenged by environmentalists before the Supreme Court, the Obama administration could have simply said, "We’re not going to defend this rule," Holmstead said. "If the rule is still pending, it’s easier for them to just undo it."
"Each administration — whether they’re Republican or Democratic — is keenly aware of the clock and the possibility of having their legacy reversed more easily if it is still pending in either the courts or the Federal Register office," said John Walke, clean air director at the Natural Resources Defense Council.
"There are opportunities to reverse course in pending court cases that stakeholders on all sides are very mindful of," he said.
