In the past three years, the number of actions to strip federal regulations protecting the nation has earned Donald Trump industry acclaim as “the all-time record rule-cutter.” Fortunately for the majority of Americans who don’t want to read nature’s obituary while the government signs a blank check to industry gluttons, conservation groups foresaw the Trump administration’s impending deregulation delirium. Beneath the surface of this delirium, more battles against the Trump administration’s environmental protection rollbacks have been won than against those of any previous administration. Conservation victories result from the organizations’ expertise with environmental regulations and the government’s flawed proposals that federal judges have described as arbitrary, capricious, and illogical.
Trump has weaponized federal agencies to undermine environmental health by gutting regulations on clean air and water, overturning bans on harmful materials like pesticide and coal ash, opening public lands to industry abuses, and modifying legislation that protects wildlife (Endangered Species Act, Migratory Bird Act) and ecosystems (National Environmental Policy Act).
So far, the courts have favored the vast majority of lawsuits challenging these attempts. The average win rate for this administration’s changes to environmental and other laws in court is an astonishing 6%. Prior administrations won 70% of lawsuits, according to the Washington Post. Although Trump blames “Obama judges” on the West Coast for these losses, less than half (29) were from the west, while 34 originated elsewhere, particularly in the District of Columbia Circuit.
The Institute for Policy Integrity tracks litigation over the Trump administration’s use of agencies to deregulate policies. As of Feb. 25, 2020, federal courts ruled in favor of lawsuits, or the relevant agency withdrew the action after being sued, in all but one of 36 proposed environmental policy changes. The Washington Post reports that “judges have rebuked Trump officials for failing to follow the most basic rules of governance for shifting policy, including providing legitimate explanations supported by facts and, where required, public input.”
Two-thirds of all successful deregulation lawsuits hinge on non-compliance with the Administrative Procedure Act (APA), a 73-year-old law specifying steps federal agencies must use when developing and issuing regulations. For example, to modify protections for an Endangered animal species, an agency must comply with standards set forth in the Endangered Species Act (ESA). Agencies also must keep the public informed about their procedures and provide opportunities for public comments, such as notices in the Federal Register with an open comment period and public meetings.
Any false step in this bureaucratic process creates openings for lawsuits. Whether through unconcern by Trump agency appointees about the actual viability of a policy change because the main purpose is publicity—to announce the policy shift rather than implement it—or because administrators are unable to craft a legally sound proposal, agencies are releasing plans that fail to comply with the regulatory framework.
It’s vice signaling, the opposite of virtue signaling. Proposals may not survive legal challenges, but each announcement stimulates political donations from the industries being served. In 2018, oil and gas companies donated $84 million to lawmakers who oppose environmental protections; 88% of these donations went to Republicans.
Nonprofit groups have been crucial in creating, expanding, and defending foundational conservation policies in the U.S. such as the National Environmental Policy Act (NEPA) and the Clean Air Act. They are a longstanding source of actions, for example restoring the peregrine falcon population after the ban on DDT, or blocking Arctic drilling. Numerous conservation nonprofits have filed lawsuits independently or in partnerships that make the most of their individual finances and talents. Groups nimbly join together for different lawsuits based on their specialties, such as pesticides, endangered species, air pollution, public lands, and litigation. Partnerships include large well-known groups (e.g., Sierra Club, The Wilderness Society, Defenders of Wildlife, League of Conservation Voters, Greenpeace) and lesser-known or regional groups (e.g., Center for Food Safety, Pesticide Action Network, Appalachian Mountain Club, West Harlem Environmental Action).
Saving grizzly bears from trophy hunting, ensuring fracking on public land doesn’t harm the environment, and protecting waters from mercury pollution are a normal day’s work for The Center for Biological Diversity, Natural Resources Defense Council, and EarthJustice. Before Inauguration Day 2017, the groups ramped up preparations for what they knew was coming—an “unprecedented attack” on environmental and ecosystem health. In November 2016, Trump vowed that, in his first 100 days in office, he would get rid of two regulations for every one put in place.
As soon as Trump was sworn in, the Center for Biological Diversity (The Center) began their #Earth2Trump campaign.
No president has ever come into office promising to do so much damage to so many people in so many ways as has President Donald Trump. [...]
But there is resistance — a vast, powerful and sustained force that stands tall and speaks with a single voice and loving heart.
At the core of that resistance is the Center and you, our supporters, and we'll be fighting, together, for what's right every single day Trump's in office.
Instead of waiting for Trump’s promised deregulation, The Center launched their own 100-Day Trump Action Plan, which included hiring 10 new attorneys to “aggressively hold the administration accountable when it violates America's federal environmental laws.” According to their Trump Lawsuit Tracker, the organization has filed 193 lawsuits (as of March 6, 2020) against “Trump's rollback of protections for wildlife, public lands, our climate and communities” in the past three years.
In their 146th lawsuit, The Center, along with the Sierra Club and WildEarth Guardians represented by lawyers from Advocates for the West, sued the Bureau of Land Management (BLM) for approving new oil and gas leases on 4,200 acres of public land in Arizona. Did vice signaling to stimulate donations from fossil fuel industries lead to The Center’s Feb. 5 victory?
The lawsuit hinged on the BLM’s refusal to conduct new environmental reviews or consult with area tribes when approving the leases. Instead, the agency submitted a 30-year-old resource management plan, written before modern fracking, to describe potential impacts to an important aquifer, three endangered species, and public health. The Center asserted, logically, that a fracking impact assessment requires actual analysis of oil, gas and helium fracking consequences. The judge agreed and prohibited any activity on the oil and gas leases until federal agencies complete reviews required under the NEPA, the ESA, and the National Historical Preservation Act. In exchange, conservation groups have dropped the lawsuit—for now.
On Feb. 9, the Center announced another win in a lawsuit against the Department of the Interior’s (DOI) “thrill-kill council.” Corruption fighters Democracy Forward, an organization formed in 2017 to expose and oppose “the rampant corruption in the Executive Branch” represented The Center, Natural Resources Defense Council, and the Humane Society in a lawsuit that forced the DOI to end its illegal International Wildlife Conservation Council (IWCC). The lawsuit claimed the IWCC’s formation violated the Federal Advisory Committee Act (FACA), which requires government advisory panels to be in the public interest, fairly balanced, and protected against improper influence by special interests.
An act of blatant vice signaling that violated all three FACA requirements, the IWCC’s purpose was to increase trophy hunting and diminish Obama-era regulations against importing heads and hides of imperiled foreign species like African elephants, lions, and rhinos. Former DOI Secretary Ryan Zinke rejected nominations from conservation and science groups and instead stacked the IWCC with celebrity hunting guides, big-game hunters, and firearm manufacturers, many with direct ties to Trump and his family. An Associated Press investigation found the members shared Zinke’s view that the best way to protect endangered species is “to encourage wealthy Americans to shoot some of them, funding conservation and anti-poaching efforts by paying hefty license fees to cash-strapped African countries.”
Other recent accomplishments from The Center’s litigations have forced designation of 445 stream miles of critical habitat for crayfish in Appalachia, blocked listing of Northern long-eared bats in northeastern and mid-Atlantic states as “threatened” instead of “endangered” (endangered species receive critical habitat protection), and overturned approval of a copper mine in Arizona by requiring agencies to redo their analysis of potential impacts to jaguars and other endangered species.
With 50 years experience using science and law to defend the environment, the Natural Resources Defense Council (NRDC) had already identified their adversary and was battle-ready by Inauguration Day.
Since the Trump administration assumed office in 2017, we’ve witnessed an unprecedented attack on our environmental safeguards: rollbacks to bedrock environmental laws, delayed protections for endangered species, attacks on the science that supports important regulations. But they’ve run into a barrier: us.
NRDC’s first fight against Trump’s deregulation began in January 2017, with a lawsuit against the Environmental Protection Agency (EPA) for illegally rescinding the mercury protection rule without public notice or an opportunity for comment.
Six months later, the EPA reinstated the mercury protections. “That case established a pattern that we then saw recur over the next few months in particular, which was that the administration would do something blatantly illegal, we would sue or others would sue, and before even defending themselves in court, the Trump administration would back down,” says Aaron Colangelo, the nonprofit’s litigation director.
Fast Company noted that in the first year and a half of Trump’s presidency, NRDC had filed 50 new lawsuits. NRDC’s first lawsuit was filed before midnight on Inauguration Day and, over the next 18 months, the organization filed one new legal action against the Trump administration every eight days. In December 2019, NRDC announced the filing of their 100th lawsuit against the Trump administration in 1,000 days.
NRDC has won 92% of the 61 cases resolved either by court decision or by withdrawal of the proposed change. Other victories resulted in a banning seven cancer-causing food additives, blocking an Executive Order allowing oil and gas leases in the Arctic and Atlantic Oceans, and stronger protection for the endangered rusty patched bumblebee. Cecilia Segal, an attorney on NRDC’s litigation team, sums up their successes, “I started my job at NRDC five days after Trump’s inauguration and immediately got to work on our lawsuit against the president’s disastrous 2-for-1 Executive Order and our fight to stop the Keystone XL pipeline. Our Trump defense work hasn’t slowed down since—but the hard work is paying off.”
On Jan. 20, NRDC filed their 110th lawsuit since Trump’s inauguration, this one demanding that the administration propose ESA protections to help save pangolins, “the poster children of the illegal wildlife trade,” from extinction.
While many conservation groups focus on natural and cultural resources, EarthJustice, formed in 1971 within the Sierra Club during a campaign to protect an isolated valley in California’s Sierra Nevada Mountains from Walt Disney’s planned ski resort, specializes in legal proceedings. Now independent and serving over 500 public interest clients free of charge, EarthJustice’s 143 full-time lawyers go “to court for the good of the planet” and have 661 active legal proceedings. The organization’s “lawyers for the environment” have sued the Trump administration over 130 times on behalf of 160 partners, including The Center and NRDC. Of these 160, 40 cases have led to a court decision so far, with EarthJustice winning 83%.
One of their winning lawsuits was filed in August 2017, after the U.S. Fish and Wildlife Service (FWS) announced they would remove ESA protections from the Greater Yellowstone grizzly bear population. Delisting these animals was another Trump gift to special interest groups who wanted trophy hunting of grizzlies in Idaho, Montana, and Wyoming. But before the grizzlies could be shot and mounted as trophies, the bears had to be delisted.
EarthJustice has litigated to protect grizzly bears from loss of federal protection since 2007 and was ready to sue FWS. Representing the Northern Cheyenne Tribe, Sierra Club, The Center, and National Parks Conservation Association, EarthJustice’s lawsuit contended that the plan to remove ESA protections overlooked important conservation issues and denied public comment.
FWS planned to declare the Yellowstone-area grizzlies a “distinct population segment” to justify delisting. The agency reasoned that these grizzlies comprise a stable population, based on the FWS 2016 management plan. FWS claimed that the plan would prevent further decline in the bear population size after delisting.
EarthJustice argued that FWS ignored important threats. The bears’ traditional foods are less available now due to climate change and increased spread of invasive species and disease. As the bears’ diet shifts from plants to a heavier dependence on meat (livestock and gut piles left by hunters), the animals face increased mortality because livestock predation is a bear death sentence, as is conflict with hunters.
In September 2018, a federal judge agreed and ruled it was illegal to strip ESA protections from the grizzly bears. The court order addressed a yes or no question: Did FWS exceed its legal authority when it delisted the Greater Yellowstone grizzly bear?
Yes, they did. The court said FWS “entirely failed to consider an important aspect of the problem” and that their application of the ESA threats analysis is “arbitrary and capricious.” The ruling also noted that the FWS reliance on two studies was “illogical” and they failed to apply the best available science.
While the Trump administration continues to back polluters, fossil fuel industries, trophy hunters, and sometimes destruction solely for the sake of donations, most Americans value public lands, clean air, and clean water. Even among Trump voters, nearly two-thirds oppose privatizing or selling off these lands. More of us want natural lands protected (67%) than developed for oil and gas extraction (16%). We want natural places protected for future generations to enjoy (91%) and at-risk wildlife saved from extinction (81%).
Conservation groups aligned with American values are a key reason why all is not lost. However, our environmental defenders are racing around putting out the spot fires from Trump’s regulatory conflagration. Their lawsuits win because the administration’s actions are flawed, whether through incompetence or because the only purpose is vice signaling.
Imagine what might be accomplished if, instead of fighting hundreds of spot fires, this energy and investment were used to protect native species and their ecosystems. Conservation organizations could resume working for legitimate regulatory reform and expanded environmental policies. Instead of obstructing myriad “arbitrary and capricious” attempts to rollback regulations, they could support public values to ensure clean air and water and to defend nature for the benefit of present and future generations.