The Trump administration is gearing up to challenge some of the highest-profile Clean Air Act regulations of the Biden administration.
Any attempt, however, to scrap or weaken them could risk running afoul of the same obstacle that repeatedly stalled regulatory rollbacks during President Donald Trump’s first term: court setbacks tied to procedural fumbles.
Between 2017 and 2021, federal judges repeatedly found that EPA sideswiped the Administrative Procedure Act and other guardrails in hastening to undo climate and air rules. Those decisions helped fuel a 57 percent loss rate in challenges to major regulations of all types during Trump’s first term, according to a tally by the Institute for Policy Integrity, a liberal-leaning think tank based at New York University law school.
That percentage was by far the worst of the four administrations covered by the rankings, which extend to the presidency of Bill Clinton. As Trump’s second term gets underway, EPA’s ability to avoid similar blunders will be crucial to determining the staying power of an accelerating deregulatory drive.
The stakes are enormous, with measures in play that are cumulatively projected to save thousands of lives and make a substantial dent in planet-warming greenhouse gas releases, according to government forecasts. Even if the administration fails to permanently erase or replace them, its rule-busting push could foster implementation delays.
In recent weeks, EPA and the Justice Department have moved to freeze proceedings in at least five Clean Air Act cases pending before the U.S. Court of Appeals for the District of Columbia Circuit with the goal of giving the new administration time to consider its position.
Among them: litigation over the latest round of “good neighbor” smog control regulations and greenhouse gas standards for existing coal-fired generators and new gas-fired plants; a separate update to air toxics limits for the power sector; a stronger soot exposure limit; and tougher pollution control requirements for medical equipment sterilization plants that use ethylene oxide, a carcinogen.
EPA is seeking holds ranging from two to three months. In largely identical boilerplate language used in each filing, agency lawyers said a pause is warranted because courts have “recognized that agencies may generally review and, if appropriate, revise their past decisions.”
In interview and email exchanges, several industry attorneys described the motions as typical for a new administration. But one predicted that there’s more to come.
“I think they’ll probably revoke or revise all these rules, and I think they’ll do much better in court this time around,” Jeff Holmstead, a Bracewell partner who served as EPA air chief during George W. Bush’s administration, said in an email last week.
“As you know, in Trump 1, they really weren’t prepared to take over the government when they won the election,” Holmstead added, “but they are much better organized and prepared in Trump 2.”
At Earthjustice, which represents environmental groups, senior attorney Seth Johnson was dubious.
“If your goal is to move fast and break things, it’s not all that surprising that you’d ignore the law,” Johnson said in an interview. “These people still want to move fast and break things.”
At EPA, spokesperson Molly Vaseliou did not address specific questions from POLITICO’s E&E News, but said in a statement that the agency “will follow the law and science to fulfill its mission to protect human health and the environment.”
The D.C. Circuit is so far rendering mixed verdicts on EPA’s abeyance bids. On Tuesday, a D.C. Circuit panel agreed to pause the soot standards litigation after holding oral arguments in the case last December. Rejected last week, however, was EPA’s request for a 60-day hold on the good neighbor plan litigation, with the next brief now due March 10 and oral arguments scheduled for late April.
First-term woes
During Trump’ first term, federal judges repeatedly concluded that EPA flouted basic legal requirements.
In a 2018 ruling, for example, a D.C. Circuit panel wrote that agency leaders “made a mockery” of the Clean Air Act in seeking to justify a 20-month delay in the effective date of Obama-era safeguards aimed at preventing potentially catastrophic industrial chemical releases.
“Because EPA has not engaged in reasoned decisionmaking, its promulgation of the Delay Rule is arbitrary and capricious,” the panel wrote in vacating the rule.
In a split decision two years later, a separate panel majority concluded that EPA had violated the Administrative Procedure Act in rewriting regulations intended to stem emissions of the class of powerful heat-trapping gases known as hydrofluorocarbons without first offering the public a chance to weigh in.
The “one option EPA could not permissibly pursue was the one it chose: promulgating a legislative rule without abiding by notice-and-comment requirements and without invoking any exception to those obligations,” the panel’s opinion stated.
While the bulk of the adverse rulings came from the D.C. Circuit, which fields legal challenges to nationally applicable rules, other courts also weighed in. In a 2020 decision, the Philadelphia-based 3rd U.S. Circuit Court of Appeals slammed a “shoddy enforcement regime” in vacating EPA’s approval of a Pennsylvania plan to limit smog-forming power plant emissions.
The agency’s record wasn’t all goose eggs. A year earlier, the D.C. Circuit had rebuffedenvironmental groups’ challenge to a controversial hazardous air pollution policy change on the grounds that officials had not taken the “final agency action” needed to trigger judicial scrutiny.
In a Bloomberg Law op-ed, Matt Leopold, who served as EPA’s general counsel during Trump’s first term, later noted that ruling and others as evidence that the administration’s environmental agenda was “succeeding in the courts.”
EPA had “prevailed in approximately two-thirds of the cases decided over the last three years that challenge significant environmental actions taken during this administration,” Leopold added.
And while the Biden administration’s judicial track record is still far from complete, it has suffered defeats.
In 2023, the 3rd Circuit nixed EPA’s attempt to force an oil refinery in the U.S. Virgin Islands to get a new permit before restarting operations.
More prominently, the Supreme Court last June stayed the “good neighbor” smog plan on the grounds that EPA had not adequately explained how its pollution control requirements would work after other judicial decisions stymied implementation in more than half of the states originally covered.
‘Regulatory reset’
Business lobbies have been mobilizing since Trump won reelection last November. The next month, the National Association of Manufacturers and other groups urged him to revisit the stricter annual soot standard put in place last year in the course of a broader “regulatory reset.”
Far from Washington, another battle has erupted in northeastern Utah, where the state and oil industry are contesting EPA’s decision in the final full month of the Biden administration to downgrade the Uinta Basin’s compliance status for the agency’s latest ground-level ozone standard.
If it stands, that decision could force fossil fuel interests in the region to do more to control emissions that spawn the lung-damaging pollutant. In a motion filed with the 10th U.S. Circuit Court of Appeals, the Utah Petroleum Association has asked for a stay, partly on the grounds that EPA allegedly exceeded its statutory authority.
The agency has not yet responded in court, but on Feb. 20, the Center for Biological Diversity and other groups sought to intervene in defense of the downgrade, voicing uncertainty over whether the Trump administration will stand by it.
“We are very concerned that they are going to throw public health in the back seat and open the door for unfettered fossil fuel extraction in the Uinta Basin,” Jeremy Nichols, a senior advocate with the center, said in an interview.
Still to be seen is whether the Trump administration’s efforts to uphold its broader agenda in court will be stymied by self-inflicted turmoil in the Justice Department’s Environment and Natural Resources Division. As E&E News has previously reported, at least four section leaders there have been transferred to immigration-related assignments.
Asked Feb. 20 whether DOJ expected those transfers to affect the division’s ability to successfully defend EPA and whether other employees have been affected, spokesperson Matthew Nies said the department had no comment.
