LAW

Obama admin suffers through a losing streak

The Obama administration has suffered a string of environmental setbacks in court.

Most recently, an Obama-appointed federal judge in Wyoming this week sharply rebuked the administration's efforts to regulate hydraulic fracturing on public lands. The gutting of that rule came on the heels of a string of other big defeats surrounding some of the administration's signature environmental policies, including courts' decisions to put the brakes on major climate and water regulations.

The legal battles over some of President Obama's marquee environmental rules are far from over. But lately, the news hasn't been good for the administration.

North Dakota Attorney General Wayne Stenehjem, a Republican involved in lawsuits attacking the administration's environmental rules, sees the recent court moves as a win for Obama's critics.

In the administration's rush to establish an environmental legacy, there are concerns that U.S. EPA and the Interior Department's Bureau of Land Management -- which issued the fracking rule -- "are rushing things and cutting corners as they do so."

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Now, they're paying the price in court, Stenehjem said, "and they should."

Suzanne Murray, a partner at Haynes and Boone LLP in Dallas who was regional counsel in EPA's Texas-based regional office until last year, thinks the administration will be "dismayed" by the recent court outcomes. She noted that the court setbacks come after the administration "very consciously made really aggressive policy decisions."

This week, Judge Scott Skavdahl -- an Obama appointee on the U.S. District Court for the District of Wyoming -- killed BLM's fracking rule, ruling that the agency has no authority over fracking. The government will almost certainly appeal the decision, and the Interior Department has framed the decision as merely a "delay" (EnergyWire, June 22).

Still, the judge's language that BLM acted "in excess of its statutory authority and contrary to law" is a blow to the administration.

Just last month, Supreme Court justices unanimously ruled against the government in a case deciding when landowners can challenge certain decisions about water permits in court. That decision opens the door for widespread court fights the government was hoping to avoid (Greenwire, May 31).

Perhaps the biggest defeat for the administration's environmental regime this year came in February, when the Supreme Court intervened to block EPA's Clean Power Plan.

The administration and supporters of the regulation are quick to note that neither the high court nor a federal appeals court has yet waded into the merits of the rule to limit greenhouse gases from power plants.

EPA boss Gina McCarthy bristled at the suggestion that her agency had lost when the Supreme Court unexpectedly intervened to halt the climate rule. "We didn't lose anything yet," McCarthy said in April as she downplayed the significance of the move (Greenwire, April 26).

Still, EPA and its backers were troubled by the move. Courts typically agree to freeze regulations if they think the challengers are likely to succeed on the merits of the case.

The momentous Clean Water Rule from EPA and the U.S. Army Corps of Engineers is also on hold after two federal judges moved to block that rule.

A North Dakota district judge last August blocked implementation of the rule in 13 states. A Cincinnati-based federal appeals court blocked the regulation nationwide in October, and it remains stalled.

Admin confident it'll prevail

Administration officials say they are confident they will successfully defend these environmental rules.

John Cruden, the Justice Department's top environmental lawyer, said his office "will continue to vigorously defend federal agency rule-making like the EPA's Clean Power Plan, Waters of the United States, and the Department of the Interior's fracking rule. These rules are extraordinarily important with exceptional and significant environmental benefits."

Cruden said he's "extremely proud" of the administration's environmental track record and he expects to win in court.

"We are confident we will prevail when the [Clean Power Plan] has its day in court," EPA spokeswoman Melissa Harrison said today in a statement. And the administration looks forward to "vigorously defending the merits of the Clean Water Rule, which the agencies continue to believe is fully consistent with the law and based on the best available peer-reviewed science."

Both the Clean Power Plan and the Clean Water Rule are widely expected to wind up in the Supreme Court, where their fate could be decided by the replacement for the late Justice Antonin Scalia, who died in February.

"Ultimately it wouldn't surprise me to see the Supreme Court upholding both of those," said Ann Carlson, an environmental law professor at UCLA.

The decision knocking down the BLM fracking rule appears likely to be appealed to a federal appeals court. That challenge could also make its way to the Supreme Court eventually.

Carlson said the recent decisions seem to be "more episodic than a trend," noting that in general, "courts are pretty deferential to environmental agencies." She added, "I think it's more a question of who's hearing it. ... It does show that who makes the decisions makes an enormous difference."

While the administration has had setbacks recently surrounding big agency programs, "they've also won some," said Jim Rubin, an attorney at Dorsey & Whitney and a former Justice Department official.

He pointed to the Obama administration's legal victories surrounding a rule to curb interstate air pollution and court rulings that largely kept EPA's greenhouse gas permitting regime in place. EPA's rule to curb power plants' toxic emissions was knocked down by the high court but held in place while the agency tweaked its regulation.

The hurdles the administration has faced in court recently aren't unexpected "in places where the agencies are pushing executive authority," Rubin added.

"There's a limit to how much you can push with courts," he said.

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