Following a record-long 35-day government shutdown early last year, President Donald Trump's administration was already running short on time to finish high-priority environmental rollbacks before the November 2020 elections. Now the coronavirus outbreak that is sweeping across the nation is also threatening to derail some of the most important pieces of Trump's deregulatory environmental agenda by causing workforce disruptions and court delays.
The evidence is already beginning to mount in federal court filings. On March 20, lawyers representing the U.S. Environmental Protection Agency and a coalition of states, public health organizations and environmental groups jointly asked a federal appeals court to extend the briefing schedule in a pivotal lawsuit challenging the repeal and replacement of the Obama-era Clean Power Plan.
"Some counsel actively involved in the briefing for coordinating petitioners – including those located in the San Francisco Bay Area – are subject to 'shelter in place' orders prohibiting activity outside the home other than enumerated essential purposes such as purchasing food," state petitioners told the U.S. Court of Appeals for the District of Columbia Circuit.
The petitioners also noted that in other areas where counsel is involved in briefing, including New York City and Washington, D.C., employers have instituted remote working arrangements while local school districts have closed to combat the spread of COVID-19. "As a result, many counsels and client representatives have children at home throughout the workday, which in some cases significantly limits their availability to work," the petitioners said.
Instead of a July 30 deadline to file final briefs, the parties are asking that they be due Aug. 13.
The court filing followed a March 17 announcement by the D.C. Circuit that it has called off all in-person oral arguments until further notice. According to a court bulletin, each three-judge panel assigned to hear a case will determine whether to conduct oral arguments via telephone, postpone them to a later date, or decide the case on briefs alone with no oral argument.
"As someone with almost a dozen DC Circuit oral arguments under my belt, I'm having trouble wrapping my head around the idea of argument by teleconference. I need to see the judges' faces. Can we get the D.C. Circuit a Zoom link?" Jeff Dennis, a prominent energy lawyer and former policy guru at the Federal Energy Regulatory Commission, wrote on Twitter.
Congressional Review Act not assured
One of the most important factors that will determine the fate of the Trump administration's deregulatory energy and climate agenda will be notching wins at the D.C. Circuit if the president fails to win reelection, noted Joe Goffman, former general counsel in the Obama EPA's Office of Air and Radiation.
"But litigation takes time, and we're starting to get close to the period of the calendar where if a new administration is elected in November there may still be a lot of D.C. Circuit cases pending that the new administration can seek abeyances in," Goffman said in an interview.
While the Trump administration is reportedly intent on finalizing as many rules as possible by mid-May in order to avoid their disapproval through the Congressional Review Act, Goffman said a Democrat-controlled Congress and White House may still be reluctant to deploy the seldom-used legislative tool.
The act gives Congress 60 legislative days after a federal regulation has been finalized to vote on repealing the rule. Support is needed from only a simple majority of the Senate to pass such a resolution and only 30 members' signatures are needed to schedule the vote. Once a rule is disapproved, the responsible agency is prohibited from issuing another rule that is "substantially the same" without further authorization from Congress.
"Using the Congressional Review Act to disapprove a deregulatory rule is really tricky because the language of the statute which prohibits substantially similar rulemakings in the wake of a CRA resolution of disapproval is highly ambiguous and it hasn't been tested in court," Goffman explained.
Because many of the Trump administration's rules are essentially re-promulgations of Obama-era rules but with weaker standards, disapproving those rules in their entirety could trigger that "substantially the same" language in ways a future Democratic administration may want to avoid, Goffman said. Alternatively, regulations will be much easier to withdraw if they are still in the midst of litigation, he said.
'Actions that directly affect millions of people'
While the EPA finalized its replacement for the Clean Power Plan last summer, it still has not finalized one of its most significant clean air rollbacks: the weakening of Obama-era fuel economy and tailpipe standards for cars and light-duty trucks. California and a coalition of states that follow its own tougher standards are poised to challenge that regulation, proposed jointly by the EPA and National Highway Traffic Safety Administration, shortly after it is finalized in what promises to be a lengthy court battle that could stretch on for more than a year.
The vehicle standards rule has been stuck at the White House's Office of Information and Regulatory Affairs after it was reportedly received without an accompanying regulatory impact analysis or environmental impact statement.
"The more offices that are involved, the more people that are involved ... the more complicated it is and the more of a bump in the road this will be for them," said Janet McCabe, acting assistant administrator of the EPA's air office during the Obama administration.
Meanwhile, the EPA March 18 moved forward another high-profile rulemaking by publishing in the Federal Register a supplemental proposal expanding the scope of former EPA Administrator Scott Pruitt's so-called "secret science" rule. While the agency has claimed the proposed regulation would improve transparency by requiring public disclosure of the underlying data used to develop rules, critics fear it will prohibit the agency from using the best available science. The March 18 Federal Register notice specified parties will have 30 days to comment on the supplemental proposal.
The Environmental Protection Network, a non-partisan advocacy group comprised of former EPA employees, is already planning to ask for a 60-day extension on the comment deadline, said John Bachmann, an EPN member and former associate director for science policy and new programs in the EPA's Office of Air Quality Planning and Standards.
"One of the bases is going to be, 'How can you do this when a lot of people who may want to comment are in difficult circumstances?'"Bachmann said in a recent interview.
On March 20, a coalition of nine organizations representing state and local governments also wrote to the White House requesting a formal pause for all open public comment periods concerning both active rulemakings and non-rulemaking notices "across every federal department or agency."
"At present, regulations.gov acknowledges nearly 700 open comment periods that will close in the next 30 days and more than 1,000 over the next 90 days," organizations including the National Governors Association, National League of Cities and National Association of Counties said. "The extreme impact on normal working and living conditions will impair the ability of not only state and local officials, but also the general public, issue experts and others to provide thoughtful and meaningful participation and involvement in potential federal government actions that directly affect millions of people.'
An EPA spokeswoman said in a March 20 email the EPA is open and continuing its regulatory work "business as usual."
"As regulations.gov is fully functioning, there is no barrier to the public providing comment during the established periods," the spokeswoman said.