The Trump administration is on a three-case losing streak in federal courts after falling to defeat on Friday in a major chemical safety decision. The adverse court rulings are jeopardizing the president’s goal of erasing much of former President Barack Obama’s environmental legacy as well as other longer-standing regulations.
Upon entering office, top officials in the Trump administration, including former Environmental Protection Agency (EPA) Administrator Scott Pruitt, immediately began to order the rollback of key public health and environmental safety regulations. But as these officials were carrying out President Donald Trump’s anti-regulatory agenda, many legal experts predicted the rollbacks would get tied up in court and potentially struck down.
In the latest defeat for the administration, a federal appeals court on Friday overturned the EPA’s delay of an Obama-era chemical safety regulation, emphasizing that the law “limits EPA’s authority to delay final rules for the purposes of reconsideration.”
A day earlier, a federal district court in South Carolina overturned the Trump administration’s delay of the Obama administration’s Waters of the U.S. (WOTUS) rule for failing to offer the public a proper opportunity to comment. With the court decision, the 2015 rule — also known as the Clean Water Rule — is now officially in force in 26 states. District court injunctions are preventing the law from taking hold in the other 24 states.
Three court losses in a week for the Trump administration's attempts to reverse –
– chemical safety rules
– clean water regulations
– a proposed ban on a pesticide linked to brain damage in children https://t.co/F8O7QA4Z9t
— Oliver Milman (@olliemilman) August 17, 2018
In the first of three recent court defeats for the administration, a federal appeals court on August 9 ordered the EPA to ban all remaining uses of chlorpyrifos, a pesticide used on certain food crops and non-agricultural sites that has been linked to neurological damage and other adverse health impacts.
“Everything they’re doing is not founded in the law and it’s irrational. So, it’s no surprise the courts are slapping them back,” Pat Gallagher, legal director for the Sierra Club’s Environmental Law Program, said Friday in an interview with ThinkProgress.
Even if Trump administration officials know their arguments will not stand up in court, their efforts are at least buying them a few months of regulatory rollback, Gallagher said.
Chemical Disaster Rule
In the chemical safety decision, the U.S. Court of Appeals for the District of Columbia Circuit ordered the EPA to immediately implement the 2017 Chemical Disaster Rule. The Obama-era rule was meant to reduce the risks of chemical disasters at more than 10,000 facilities across the nation. The rule, issued a week before Trump took office, was the EPA’s central response to the 2013 fertilizer plant explosion in West, Texas, which killed 15 people.
The court found the EPA unlawfully suspended implementation of the rule under Pruitt. The case was brought by a coalition of groups representing workers, community members, and scientists.
“As the anniversary of Hurricane Harvey approaches, chemical facilities must be better prepared to protect the communities where they do business,” Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists, said Friday in a statement.
In the 17 months since the EPA delayed the rule, there have been at least 58 known chemical explosions, releases, and accidents across the country, according to Earthjustice, a nonprofit environmental law firm.
“The government cannot withdraw critical safety rules based on political whim — people’s lives should come first. The court’s order means industry will have to start implementing these critical safety measures immediately — with the new hurricane season underway, there is no time to wait,” Earthjustice attorney Gordon Sommers said Friday in a statement.
The BlueGreen Alliance, a partnership of the nation’s largest labor unions and major environmental organizations, welcomed the court’s ruling. But the alliance also said it remains concerned by the EPA’s ongoing efforts to weaken the rule by removing important provisions, including those that require companies to invest in prevention measures, train and coordinate with first responders, and inform communities of industrial hazards.
“The Chemical Disaster Rule will improve public safety and must be pushed forward in its original form, not weakened as the administration has proposed,” BlueGreen Alliance Executive Director Kim Glas said Friday in a statement.
D.C. Circuit Judge Brett Kavanaugh was originally part of the panel that heard the arguments in the chemical disaster case. But he withdrew from the case after being nominated by Trump to the Supreme Court.
Clean Water Rule
On Thursday, the Obama-era Clean Water Rule became the law in 26 states after a judge with the U.S. District Court for South Carolina issued a nationwide injunction on the Trump administration’s delay of the regulation that defines which wetlands and waterways get federal protection. The injunction targeted the Trump administration’s February order suspending the rule while EPA and the Army Corps of Engineers worked on a new version.
The ruling leaves an assortment of rules across the country as courts have issued stays blocking the rule in 24 states. Consequently, the South Carolina ruling only impacts those states that do not have a legal stay in place blocking the Clean Water Rule.
The Clean Water Rule, which was first proposed in 2014, sought to clarify the legal jurisdiction of the federal government under the Clean Water Act. In doing so, it expanded protection for 2 million miles of streams and 20 million acres of wetlands. The rule was widely criticized by industry — including fossil fuel companies, manufacturers, and agribusiness — as well as by Republican lawmakers, who called the rule an example of overreach by a federal agency.
“This is a tremendous win for protecting rivers, wetlands and clean drinking water nationwide,” Bob Irvin, president and CEO of American Rivers, said Thursday in a statement. “The court made clear that the Trump administration cannot ignore the law, science, or the views of the American people in its rush to undermine protection of rivers and clean water.”
The administration and industry groups are likely to appeal the decision. The litigation in the other 24 states is ongoing, and the administration is expected to continue its efforts to repeal and replace the Clean Water Rule.
In another important win for public health, the U.S. Court of Appeals for the Ninth Circuit on August 9 nullified efforts by the Trump EPA to overturn a proposed ban on chlorpyrifos.
Rep. Frank Pallone (D-NJ), the top Democrat on the House Energy and Commerce Committee, said he was pleased by the appeals court’s “rightful criticism of the Trump EPA for dragging its feet in restricting this harmful chemical.”
“Scientists had already found it was present in food and drinking water at unsafe levels, in blatant violation of chemical standards,” Pallone said in a statement.
Pallone, together with fellow Democrats in the House and Senate, have asked the EPA’s Office of Inspector General and House Energy and Commerce Committee Chairman Greg Walden (R-OR) to conduct an investigation into the EPA decision to forgo a ban on the pesticide. “I remain concerned about the ongoing conflicts of interest at the Trump EPA that led to this situation in the first place,” Pallone said.
The Sierra Club’s Gallagher views acting EPA administrator Andrew Wheeler as no different than Pruitt from a policy point of view. Gallagher expects the EPA will continue its efforts to undermine environmental regulations until Trump leaves office.
“They’re going to try to get everything they can across the finish line, and we’re going to keep fighting them. And I think we’re going to win most of the time,” Gallagher said.