In the News

Throughout his confirmation hearing and in a recent interview, EPA Administrator Scott Pruitt wrapped himself in the mantle of federalism, calling the shared distribution of power between the federal government and states a “bedrock principle” of environmental laws. Pruitt accused the Obama administration of intruding on the autonomy that environmental laws give to the states and vowed to set this balance right. But Pruitt’s views are inconsistent with any coherent vision of federalism.

Indeed, Pruitt’s comments on CNBC might even hurt any effort at repeal. Opponents could point to them in court as evidence that EPA’s new conclusion was being driven by the administrator’s unfounded views on science rather than careful analysis. “The comment could come to haunt Administrator Pruitt in court in the same way that the ‘Muslim ban’ comment has haunted President Trump in recent rulings,” says Richard Revesz, a law professor at New York University.

Denise Grab, a lawyer with New York University Law School’s Institute for Policy Integrity, said Gorsuch has a “mixed bag” of rulings related to public lands and the environment, yet seems “unusually eager to throw roadblocks in the way of public interest groups who want their day in court.”

Pruitt’s attempt to cast uncertainties about climate change would still not relieve the EPA from its obligation to act, Jack Lienke, a senior attorney at the Institute for Policy Integrity at the New York University School of Law, told Bloomberg BNA.

President Donald Trump and newly confirmed EPA administrator Scott Pruitt appear poised to make sweeping environmental policy changes. But strong environmental regulations remain widely popular. Perhaps as a result, the Trump administration may take a subtle approach in attacking environmental rules. Pruitt and other administration officials appear interested in rewriting guidelines for regulatory analysis and they could cook the books so that environmental protections appear to have few or no benefits and exaggerated costs. The results would be sinister, undermining many current and future safeguards for the environment, workplace safety and other important social issues.

“The agency can’t just ignore the previous rule,” explains Richard Revesz, a law professor at New York University. “It has to make a sound argument for why its new approach is superior — and prove to the courts that it’s not just acting in an arbitrary or capricious manner.” Otherwise, the courts will knock down Pruitt’s attempts to rewrite the rule.

Appellate Judge Neil Gorsuch has been a vigorous critic of the so-called “Chevron doctrine” that gives federal agencies latitude when interpreting ambiguous laws. “Chevron deference became really important in the later part of the Obama administration because Congress hadn’t acted on a number of environmental issues in a while,” said Denise Grab, a senior attorney with Institute for Policy Integrity at New York University School of Law.

The centerpiece of Mr. Obama’s climate change policy is a 2015 E.P.A. rule curbing greenhouse gas emissions from electric utilities. Mr. Trump has vowed to eliminate the rule, but doing so could require years of court battles. “There are a number of ways this could play out as it goes through the courts, and it could take at least four to five years,” said Richard Revesz. “Ultimately, what happens to it will likely be determined by the results of the 2020 presidential election.”

America’s most progressive state is set to lead the new fight against federal power. Some potential suits are starting to take shape. California’s lieutenant-governor has said that the state could sue under the California Environmental Quality Act or its federal equivalent to quash Mr. Trump’s plans for a wall along the border with Mexico. Richard Revesz, an environmental-policy expert at New York University’s School of Law, says Democratic states could also sue to slow the repeal of the Clean Power Plan.

“If the metric is revised, then the incoming administration would have an obligation to explain why it’s departing from the current approach,” Richard Revesz said. Any changes made without adequate scientific justification would likely be struck down in court.