See You in Court!

by Greg Walcher on December 23, 2016

A Cornell study of litigation in America a few years ago tracked some 260,000 civil lawsuits by type and disposition, showing an alarming expansion of Americans suing each other. The total number of such lawsuits had increased about nine percent between 1987 and 2000, but lawsuits related to environmental matters during the same period had increased by a whopping 65 percent (from 555 in 1987 to 914 in 1999 and over 1,000 in 2000 and virtually every year since). In other words, three environmental lawsuits are filed in the United States every day.

ill_see_you_in_court_mugThat’s about to get much worse. Here’s why.

The 2016 election is now history, but the battle over new policy is just beginning. How it will play out, at least in the arena of natural resources and environmental policy, is quite predictable.

The Party about to vacate the White House has been left in a weaker political position than at any time since the 1920s. Not since the aftermath of World War I and Harding’s “return to normalcy” have Democrats held fewer seats in the Congress, Governor’s offices, and state legislatures. The latter is important because it signals a significant problem for opponents of the incoming Trump Administration’s agenda to roll back over-reaching EPA regulations and jump-start the production of America’s domestic energy supplies.

Republicans will be in control of both Houses of Congress and the White House, but also of 33 state legislatures and 33 governors. Four other states (including Colorado) will have legislatures split between the parties, making state action more difficult on environmental issues. That matters because one of the key strategies of the environmental movement is to beef up state-level environmental regulation to replace what is perceived as a likely roll-back of federal controls.

Natural Resources Defense Council President Rhea Suh explained in a blog post that her organization plans to work with local officials to advance environmental protections to counteract Trump EPA’s policies. “[Our] goals… are shared by tens of millions of people across this country, regardless of their political ideology or party affiliation. Fortunately, this group includes many leaders at the city, state, and regional levels.” She added that “in the wake of a what’s likely to be a significantly weakened federal response to the biggest environmental challenges of our time, local leaders are poised to emerge as some of our most creative and innovative champions.”

The makeup of so many statehouses across the country, though, makes a significant replacement of federal with state regulation unlikely. The truth is that this outcome leaves Democrats in control of only one branch of government – the judiciary. Although Trump will likely fill the Supreme Court vacancy with another conservative, 9 of the 13 appeals courts will still be controlled by Democratic appointees, along with hundreds of lower court judgeships. And several environmental leaders are already signaling their intention to use the courts, not states, to “reign in” the new Administration.

Conservation Law Foundation President Bradley Campbell was recently quoted saying environmental advocates expect Trump to loosen or eliminate a wide range of federal environmental protections, and environmental groups will use the courts to try and stop him.

“I think there will be a fundamental shift in strategy if the incoming administration attempts to fulfill some of the more extreme policies articulated on the campaign trail. . . . We have a number of areas where we’re prepared to play defense,” Campbell said. Of course, policies articulated on the campaign trail resulted in Trump’s election, but his opponents cannot be expected simply to go away quietly and await the next election.

Another environmental leader was anonymously quoted as expecting a windfall, saying the Sierra Club and other groups have already seen increased donations, membership and overall enthusiasm since Trump’s election. The Sierra Club’s membership and funding virtually tripled during the Interior Department tenure of James Watt in the 1980s, so history supports that conclusion. The legal arms of these organizations will be flush with cash.

Don’t be surprised if the new Administration revokes the EPA anti-coal regulations, or the “Waters of the US” power grab, or the policies that have banned oil and gas leasing on public lands. But also, don’t be surprised when opponents immediately file lawsuits, and don’t be surprised when some judges block the changes for which Americans voted. In fact, lawsuits may significantly impact energy and environment policies, and that would be sad.

People with different perspectives ought to talk to each other around a conference room, rather than face off across a courtroom.

A version of this column originally appeared in the Grand Junction Daily Sentinel December 16, 2016

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