With a confirmation vote on U.S. EPA administrator nominee Scott Pruitt expected within days, environmental groups are strategizing ahead of what will likely be a busy and significant period of litigation. During today's OnPoint, Josh Stebbins, managing attorney at the Sierra Club Environmental Law Program, discusses the future of environmental law and the impact Supreme Court nominee Neil Gorsuch could have on key rulemakings.
Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Josh Stebbins, managing attorney at the Sierra Club Environmental Law Program. Josh, thanks for joining me.
Josh Stebbins: Thanks for having me.
Monica Trauzzi: So, Josh, we're entering a significant period for environmental litigation with the Trump administration ushering in major changes to the regulatory framework of the last eight years. The courts will likely remain busy. What is your primary focus as the administration works through its first 100 days?
Josh Stebbins: I think the primary focus we have has got to be to preserve some of the public health protections that we were able to achieve under the Obama administration and to make sure that they're delivered to the public.
Monica Trauzzi: How likely do you believe that that is at this point?
Josh Stebbins: Well, I think that the public is quite aware of some of the extreme positions that are being taken by the Trump administration. I think you see it in the marches, I think you see it in the rallies, I think you see it in some of the activity by congressional representatives and senators, and I think the more the public realizes what is at stake for them, that really wasn't what Trump campaigned on. I think that it's going to be a good fight, an uphill fight, but I'm looking forward to it.
Monica Trauzzi: So this means you're going to go to court.
Josh Stebbins: Of course.
Monica Trauzzi: What are the key things that you're looking at and considering potentially litigating on?
Josh Stebbins: Yeah, well I think a lot depends on what — obviously what Trump does, and when I say of course, I don't mean to presuppose, but given the track record of the Trump administration thus far, I would imagine that he is going to try and roll back some of these public health safeguards. I mean, we're talking about clean air, we're talking about clean water, we're talking about families having safe water to drink. We are talking about our kids being able to go outside and play outdoors in the middle of the summer and not have unsafe levels of ozone, smog in the air. So I think when you come into some of those core public health elements, we'll be very active there.
Monica Trauzzi: But they're going to be taking a look at the economics of the regulations, and so there's a big economic argument to be made against some of these regulations that have been put in place.
Josh Stebbins: Actually, the economics have been part of the promulgation of these rules, and time and again, the economic and analysis shows that these rules derive greater benefits than they do have cost. I would be very comfortable in having an honest discussion about economics and the economic benefits this delivers to the American public. One thing to keep in mind, though, is also where do those benefits and costs get distributed? Well, I can tell you that the public health safeguards that are achieved under our environmental statutes and our environmental regulations, they're felt by all of America. They're felt by mainstream Americans, they're felt by families, particularly they're felt by children and elderly and infirm. And those are parts of our society that we have to be there to protect.
Monica Trauzzi: Scott Pruitt is expected to be confirmed as EPA administrator, and as administrator, he's going to strike a very different tone from what we saw from Gina McCarthy. What do you believe the key changes at EPA will be?
Josh Stebbins: I don't want to speculate too much about anything specific, but he certainly does have an anti-regulatory approach. He's got a track record of trying to block public health safeguards that EPA's put in place. So my expectation would be that his activities as a — as the administrator of EPA, should he become the administrator of EPA, would be in keeping with that, which is really protecting polluters and not the public.
Monica Trauzzi: There is a big question, or some big questions relating to conflicts of interest for Pruitt. Is that something that you think an administrator can successfully navigate without being taken to court? Can he do it?
Josh Stebbins: Well, there are different elements of that. On the one hand, the conflicts of interest, I don't think he should be engaged in rulemaking processes that he has — where he has been suing to overturn those rules. Besides that, you have to appreciate the fact that these regulations take a long time to put in place, and as you go through — as an agency develops a regulation, they're looking at, in the context of environmental regulations, the public health impacts of the regulation, what the benefits are, and there's a solid evidentiary basis for these rules. It's — if he's going to roll back some of these rules or trying to do that, he's going to be doing it based on a record that shows that these rules really do deliver important public health benefits to mainstream Americans.
Monica Trauzzi: Let's talk about Neil Gorsuch for a second. Where do you believe the Supreme Court could go with him on the bench?
Josh Stebbins: Yeah, so the Gorsuch — Judge Gorsuch's nomination is really without historical precedent when you look at the fact that the foundation of it was the refusal of the Senate for the last year to fulfill their constitutional duties of providing advice and consent to Judge Garland. And when you look at where the court is going to go, I think you really have to compare where it would go under Judge Gorsuch compared to where it would go if Judge Garland had been on that bench. My greatest concerns about Judge Gorsuch, from what I've been able to see thus far, are the fact that, number one, the judiciary really has a very important role in vindicating the public interest, allowing the public to come and where the government itself, the executive branch itself, either cannot or will not implement or enforce the law, it allows the public to come in and do that. It's not radical, it's not extreme, it's been happening for decades. So right as a movement it was built on that and voting — it's parts of voting rights, act of part of environmental regulation, public health regulations, excuse me, statutes. Judge Gorsuch has taken a very dim view of the public's ability to actually get into the courthouse door. He is focused on — many — a number of his decisions are very focused on closing that courthouse door to the public and to the public's ability to be able to actually vindicate the rights under some of these statutes.
Monica Trauzzi: He's questioned Chevron if he's confirmed. Do you think we could see a court that pushes back against this doctrine?
Josh Stebbins: Well, yeah, he sure has questioned Chevron, and I think that's alarming as a harbinger of things that could be coming down the pipe should he end up on the bench. The thing about Chevron is that it recognized an expertise in these agencies in administering the statutes that they are charged to administer by Congress. What he essentially wants to do is remove that deference to the agencies' expertise and substitute his own analysis and his own expertise. And I think that there's a lot of risk there and there's a lot of opportunity for conservative judicial activism.
Monica Trauzzi: All right, we're going to end it right there on that note. Thank you for coming on the show.
Josh Stebbins: Sure.
Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.
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