“kicking it into high gear” – Environmental attorneys prepare to capitalise on U.S. President Donald Trump’s energy deregulation initiatives

U.S. environmental organisations have announced that they are in the process of employing attorneys and preparing for a significant legal battle with the Trump administration. The dispute pertains to the administration’s rapid-fire and extensive efforts to circumvent federal regulations on coal, gas, and oil development.

The Trump administration’s strategy of primarily relying on emergency authorities and executive orders to reduce what it perceives as obstructions to a surge in fossil fuel energy production, which has been in place since January, will be put to the test by the preparations.

In the past two weeks, Trump has issued an executive order that instructs agencies to sunset all extant energy regulations by the end of the year. Additionally, in a separate memorandum, he has stated that these agencies may repeal specific regulations without giving the public a chance to comment.

Additionally, federal officials have informed companies that they may request exemptions from clean air regulations via email. They have also exempted dozens of companies from mercury and air toxics limits, expedited the construction of a controversial oil pipeline tunnel in the Great Lakes, and waived the court-ordered environmental review of thousands of oil and gas leases on federal lands.

Those actions, according to attorneys and policy experts, are a test of the existing law. This includes the provisions of the Administrative Procedure Act of 1946, which mandate that agencies publish notices of proposed and final regulations and solicit public feedback.

Dan Goldbeck, director of regulatory policy at the conservative think tank American Action Forum, stated in an interview that “they are really kicking it into high gear now.” “They are attempting to exert some pressure on certain legal doctrines in order to determine whether they can establish a new policy framework.”
Earthjustice, an environmental organisation, has announced that it is in the process of recruiting attorneys in order to contest certain actions taken by President Trump. The organisation is currently advertising 10 lawyer positions and intends to significantly increase the number this year, thereby augmenting its current roster of approximately 200 lawyers.

EIP’s Bookbinder stated that the Interior and Commerce Departments proposed a rule last week that could potentially target environmental attorneys by allowing agencies to approve projects that degrade the habitats of endangered species.

“In a sense, this is what we have been anticipating—not the White House’s significant announcements,” he stated.
Zach Pilchen, senior counsel at Holland & Knight, may find it more difficult to challenge the two-year exemptions for coal-fired power plants from mercury and air toxics limits. Pilchen has served in both the first Trump and Biden administrations.

Trump depended on a provision of the Clean Air Act, which was enacted by Congress in 1990 and allows the president to exempt specific sources for national security reasons or in the event that mitigating technology is unavailable.
Pilchen informed Reuters that this is uncharted territory. “That provision has never been subjected to a test, and it may be challenging to challenge it in court.”

He stated that the Clean Air Act includes a judicial review provision that governs litigation regarding the actions of the Environmental Protection Agency administrator, among other things. However, it does not explicitly address the actions of the president.

According to Sankar of Earthjustice, the organisation anticipates that it will be necessary to challenge the administration’s actions on multiple occasions in the years ahead. He emphasised the government’s opposition to a U.S. Supreme Court order that it facilitate the return of a Salvadoran man who was mistakenly deported and is currently being detained in a notorious prison in El Salvador.

“Typically, in impact litigation, the government alters its behaviour in other similar cases to comply with the precedent once you win a case,” stated Sankar. He also stated that he did not anticipate the administration to continue to follow precedent.