Law Professors See Legal Torpedo Aimed at Environmental Rules

SAN FRANCISCO (CN) — Former Obama administration officials said Wednesday that it won’t be easy for President-elect Donald Trump to reverse national environmental laws, but one panelist predicted that congressional Republicans would use a little-known law to torpedo regulations and roll back the nation’s most crucial environmental protections.

During the forum on environmental law in the coming Trump administration, hosted by the Association of American Law Schools at its annual meeting, Robert Verchick, a former EPA administrator who teaches at the Loyola University New Orleans College of Law, said Republicans are discussing using the Congressional Review Act to kill new EPA rules.

The Congressional Review Act is so obscure that the EPA’s own attorneys have just learned about it, Verchick said. It requires federal agencies to submit regulations to Congress for approval. If Congress nullifies them, the agency can’t issue similar rules in the future, Verchick said.

Its decisions are filibuster-proof and can’t be reviewed by the courts, he said.

The effect, Verchick said, will be a reluctance to issue new rules and a slowdown in regulation.

“People in agencies right now are thinking, ‘Do I want this to be a final rule? Because if it gets CRA’ed, nothing can come later,’” he said.

Verchick said congressional Republicans are considering going a step further by using the CRA to amend the National Environmental Policy Act, or NEPA, to reject federal guidance on climate impacts. Their argument would be that rejecting the guidance would be akin to declaring that NEPA doesn’t apply to climate change.

NEPA requires federal agencies to prepare reports assessing how projects, such as airport or highway construction, would affect the surrounding environment, and citizens are allowed to provide input. The 1969 law was the first in the world to mandate environmental review, and 160 countries have passed similar laws since its inception.

Republicans’ argument, Verchick said, would be: “‘Oh yeah, we amended NEPA through this weird little process that was not subject to a filibuster, not subject to normal lawmaking procedures, not subject to all of the other traditions of democracy.’ But that’s actually the argument they’re going with, that if they CRA this guidance, they’re essentially amending NEPA.”

The panel was nonetheless hopeful that employees at the EPA and other federal agencies tasked with managing the environment would check any attempt by the Trump administration to reverse environmental protections.

Many federal managers believe Trump will ask them to undo policies they helped establish over long careers, which could make it “very difficult to get people to move on these things,” said Marcilynn Burke, a former Bureau of Land Management director who teaches at the University of Houston Law Center.

“Administrations come and go. Elections matter, but career employees will always be there,” she said. “They do deliberately stymie the activities of a new administration.”

Elaborating on Burke’s assessment, Tseming Yang, a professor at Santa Clara University School of Law and a former deputy general counsel to the EPA, said agency employees could thwart Trump’s agenda if his administration flouts traditional rulemaking, a possibility, considering the president-elect’s “erratic” behavior on the campaign trail.

The Trump team did not return an email seeking comment on how the new administration plans to handle environmental policymaking.

Yang noted that any policy change must be approved by the Department of Justice, an agency he characterized as “reluctant” to change its litigation positions — particularly the ones it takes before the U.S. Supreme Court — based on changes in policy.

The Department of Justice, including Alabama Sen. Jeff Sessions, Trump’s controversial pick for U.S. attorney general, will likely prioritize managing its relationships with the courts, Yang said, meaning that making policy changes “will take some political capital.”

“It doesn’t mean it won’t happen, but you can only do so many things,” Yang said, predicting that if Trump focuses on economic and foreign policy issues, environmental ones “will have to take a back seat.”

That’s unlikely. Most of Trump’s Cabinet picks have ties to the fossil fuel industry, have fought environmental protections and/or have denied the existence of climate change. Oklahoma Attorney General Scott Pruitt, Trump’s pick to head the EPA, has sued the agency repeatedly over regulations to reduce greenhouse gas emissions from the oil, gas and electricity industries.

Some attendees at Wednesday’s forum, including professors from the nation’s top law schools, cautioned the panel against its rosy views. One reminded them that Trump’s transition team asked the Energy Department last month for a list of employees who had worked on climate change, prompting fears that the administration plans to clean house of government scientists working in the field.

Another warned that even if federal employees try to block Trump’s environmental agenda, it will be years after he leaves office before the EPA can begin enforcing its regulations again.

“We should not be optimistic,” he said.

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