Environmentalists Will Be Seeing Trump Forces in Court — Often

The U.S. District Court in Providence, Rhode Island, one of the judicial forums in which environmental groups are suing the Trump administration over its deregulatory actions. Photo: Carol M. Highsmith/Library of Congress via Wikipedia (Public Domain).

Issue Backgrounder: Environmentalists Will Be Seeing Trump Forces in Court — Often

By Joseph A. Davis

With Congress and the White House in the grip of Republicans, the courts are what’s left.

That may be good news for activists trying to save environmental laws and regulations from President Donald Trump’s determination to delete them.

And a boon for environmental journalists covering the clash.

Meanwhile, the courts are beckoning. It will be an epic set of battles, and it’s barely begun.

Back in February, for instance, the lawyers at Earthjustice filed suit on behalf of 10 groups to stop Trump’s declared intent to roll back former President Joe Biden’s plan to withdraw most U.S. waters from offshore leasing.

Also in February, the Center for Biological Diversity launched a suit against the Army Corps of Engineers for fast-tracking every pending wetlands permit — some 700 of them.

And groups that had been awarded climate grants under laws like the Inflation Reduction Act have already been fighting in court to collect some $20 billion they say is due them.

It’s important to note that it’s still early in the Trump administration and the deregulators have just started to officially act on all their intentions.

Also, enviros often can’t sue until the government takes some official action, which may have to wait as the administration has created a lot of its own chaos and flip-flopping (thanks, Elon Musk!).

 

Major laws enable citizen suits

Environmentalists may have a home-field advantage. So far, they’ve been winning and are looking to win some more.

That’s true in part because many major U.S. environmental laws specifically authorize citizen lawsuits — not merely to sue polluters, but to sue government agencies to force them to enforce the law.

 

These laws rely partly on

citizen groups to hold

polluters accountable.

 

These laws assume that state or federal agencies may cave in to industry demands (which was one reason for passing those laws), and so rely partly on citizen groups to hold polluters accountable.

Such provisions should prevent any court from finding (as courts often do in nonenvironmental cases) that a plaintiff has no “standing” to sue. (But lawyers can and do argue about this.) Such citizen suit provisions seek to cancel any “sovereign immunity.”

The Clean Water Act of 1972 and later revisions authorize any citizen (and noncitizens, too) to sue a polluter or state or federal agency for violating or not enforcing the law or regulations under it.

The Clean Air Act also authorizes citizen suits against polluters, state agencies or the EPA for violations of the law or its regulations.

The Safe Drinking Water Act of 1974 authorized any person to sue for compliance with its provisions. That includes the Underground Injection Control program. People can sue federal or state governments, as well as utilities and polluters. They have to give notice and wait 60 days to give states a chance to do their duty or defendants a chance to comply.

The Toxic Substances Control Act, as revised in 2016, authorizes any person to sue the EPA to compel it to perform any nondiscretionary duty under TSCA or to restrain any violation of TSCA.

It goes on like that. There are similar citizen-suit provisions in the Superfund law (CERCLA), the solid and hazardous waste law (RCRA), the Endangered Species Act (ESA), the National Environmental Protection Act (NEPA) and a number of other environmental laws.

 

‘Because the earth needs a good lawyer’

Since Congress set up most major environmental laws to be pushed forward by lawsuits from the public (including companies), there are a lot of nonprofit, nongovernmental organizations whose mission is to defend the environment. Some of them have excellent lawyers. Let’s look at a few of the players.

• Earthjustice: The renamed successor of the Sierra Club Legal Defense Fund, which started in 1971, Earthjustice is a major force. It has more than 200 lawyers on staff, and they win a lot. They are well-funded. They often take on cases on behalf of coalitions of other environmental groups, which actually strengthens their cases. Legal work is most of what they do. Their motto: “Because the earth needs a good lawyer.”
• Natural Resources Defense Council: NRDC is a major environmental group that focuses on litigating important cases, often urging government agencies to do their jobs. It is well-funded enough to have a staff of more than 700 nationwide, including about 200 lawyers and a litigation team of 40. It supports its cases with a staff of scientists and subject experts. It also lobbies for environmental legislation and issues high-quality reports for public information.
• Center for Biological Diversity: This group focuses on biodiversity and wildlife conservation. It has about 40 lawyers on staff and they are very litigious. Their cases often go beyond biodiversity to related areas like public lands, pesticides or plastics.
• Greenpeace: International in scope, Greenpeace gets media attention by climbing buildings and oil platforms. It doesn’t sue that much — but it is included here because it recently lost a $660 million verdict over its role in the 2016-17 protests around the Dakota Access Pipeline. It didn’t really play that big a role in the protest, but the fact that the verdict was partly based on defamation charges signals that free speech is very much an environmental issue.
• Defenders of Wildlife: The name is accurate. It defends wildlife in court, mostly via its Biodiversity Law Center. It also organizes projects locally and advocates conservation with reports and lobbying.
• Public Citizen Litigation Group: The litigating arm of the Ralph Nader-founded advocacy group Public Citizen, it is active in many lawsuits. It has often been engaged with the Supreme Court.
• Sierra Club’s Environmental Law Program: The Sierra Club is a vast and politically active organization whose strength lies in its many local and state chapters. It is thus a major access point for journalists exploring local issues. But it also has a robust national staff engaging in national environmental issues.
• Environmental Integrity Project: Founded by former U.S. Environmental Protection Agency enforcement chief Eric Schaeffer, this group gets involved in various lawsuits, often backing up other groups active locally. It specializes in certain issues, like coal ash, and advocates for environmental justice.
• WildEarth Guardians: This group is smaller than some of the above and is focused on public lands issues in the West. It does sue, although that’s only part of its advocacy arsenal.

Pro tip: If you want to find environmental stories, keep an eye on who these groups are suing.

 

Tracking Trump’s track record

As the lawsuits multiply, it will be good to follow some of the trackers. One is taking shape at the Lawfare blog — although it focuses on national security, it includes some environmental cases.

Another lawsuit tracker is being run by the blog Just Security. It, too, is security-focused, but also includes environmental cases. Last we looked, it had 202 cases. We’re not sure how long it will keep it up.

Potentially, the best of the trackers could be the one mounted by The New York Times (may require subscription). We are hopeful.

 

It is already clear that Trump

is losing a major fraction of

the cases against his

second administration.

 

It is already clear that Trump is losing a major fraction of the cases against his second administration. Getting an exact percentage is hard, if only because it’s hard to find agreement on the counting criteria. Is a temporary stay of a Trump action while its legality is being decided a win or a loss?

But one academic study (may require subscription), by the Institute for Policy Integrity at New York University’s law school, found that Trump won only 31% of the lawsuits during his first administration.

 

What will lawsuits bring?

If you want to keep up with all the lawsuits, watch publications like Bloomberg Green and E&E News. You can peek through their paywalls somewhat. A lot of their audience is law firms.

Many of the current and potential lawsuits will hinge on funding — in response to the many cuts proposed by the Trump-Musk administration. The reason often given for such cuts is that programs “do not align with the administration’s priorities.”

That, we learn from the Constitution, is not enough. If Congress appropriates money for something, using its power of the purse, the executive must spend it. That mandate was fortified by the Budget and Impoundment Control Act.

A lot of Trump’s hoped-for deregulation will be slowed or hobbled by the Administrative Procedure Act, which requires notice and comment, and offers a basis for lawsuits. Regulatory actions can’t be “arbitrary and capricious.” Trump’s may be.

But once such matters get to court, expect many courts to freeze the status quo. … and expect final resolution to take a very long time. Often years.

[Editor’s Note: Be sure to visit our Trump 2.0 EJWatch special section spotlighting SEJournal stories and EJToday headlines that track the impact of the Trump administration on the environment, energy and journalism.]

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.

---

* From the weekly news magazine SEJournal Online, Vol. 10, No. 19. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.