- The Washington Times - Wednesday, April 5, 2017

Democratic attorneys general eager to defend the Obama administration’s climate change policies are vowing a flurry of lawsuits to stop President Trump’s regulatory rollback — moves analysts say face an uphill legal battle and are unlikely to secure the same kinds of victories Republicans racked up over the last eight years.

Republican officials during former President Barack Obama’s two terms, often led by EPA chief and former Oklahoma Attorney General Scott Pruitt, succeeded in blocking key environmental initiatives such as the Clean Power Plan, the Waters of the U.S. rule and other regulations. While they weren’t successful in every case, Mr. Pruitt and his allies often convinced federal courts to stay the rules, temporarily putting them on hold until the cases could be judged on the merits.

Democrats now are employing the reverse strategy: urging courts to stop Mr. Trump and Mr. Pruitt from formally undoing many of those rules and other protections put in place by the prior White House.

But there are key differences, according to specialists, between what Republicans were able to do and what Democrats hope to accomplish in the Trump era.

“If they go through the right procedural steps, it’s hard to see how the state attorneys general, the Democrats, can prevail,” said Jeff Holmstead, an attorney at Washington’s Bracewell law firm and former EPA assistant administrator for air and radiation. “They want to show an important constituency — the environmental community — that they’re going after the Trump administration [but] those arguments, in most cases, are not going to be legally relevant.”

Indeed, on the surface it seems far easier to challenge the legality of a given rule than to successfully stop the revocation of regulations, unless they’re specifically mandated under federal laws such as the Clean Air Act. Undoing a rule, Mr. Holmstead said, hinges on the EPA following all proper procedures.

In the case of the Clean Power Plan, for example, the administration must undergo a lengthy rule-making process that includes draft proposals, public comments and other steps. Democrats’ best hope at keeping the Clean Power Plan in place would seem to be finding errors in the EPA’s administrative procedure rather than arguing it’s illegal to withdraw the plan altogether.

Still, Democrats are intent on pursuing their strategy. Just this week, New York Attorney General Eric Schneiderman, along with his counterparts in California, Massachusetts and other states, filed a lawsuit challenging the Trump administration’s plan to delay a host of energy efficiency standards for commercial products like ceiling fans and air conditioners.

“Energy efficiency standards are vital to public health, our environment, and consumers. This is yet another example of how the Trump administration’s polluter-first energy policy has real and harmful impacts on the public health, environment — and pocketbooks — of New Yorkers,” Mr. Schneiderman said in a statement, arguing that the administration is violating the federal Energy Policy and Conservation Act by halting the standards.

Industry groups rejected that argument and said the delaying of such standards is by no means the basis for a lawsuit.

“This lawsuit is mostly just putting the administration on notice that they are paying attention, and that’s their right. The fact is, these rules will be out in one form or another long before this case ever sees the inside of a courtroom,” said Stephen Yurek, president & CEO of the Air-Conditioning, Heating, and Refrigeration Institute.

Legal action on other issues seems virtually certain. Also this week, California Attorney General Xavier Becerra and others sent a letter to the EPA objecting to the agency’s withdrawal of a requirement that oil and gas companies provide detailed data on their emissions, along with a host of other information.

“If Administrator Pruitt thinks the Agency can evade its obligation under the Clean Air Act to regulate methane emissions from oil and natural gas sector operations simply by ceasing the collection of information about their methane pollution, he is sorely mistaken,” Mr. Becerra said in a statement.


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