A second Trump presidency would lead to a sea change for climate-related lawsuits in the nation’s courts.
In recent years the courts have become a major battleground over climate and environmental regulations, as everyone from powerful corporations to groups of teenagers has sued to fight for or against efforts to slow global warming.
Among these cases are numerous high-profile suits in federal courts attacking Biden-era climate policies, including Environmental Protection Agency rules on power-plant emissions and other forms of air pollution. One of the most immediate actions of a future Trump administration could be to stop defending those cases in court or to switch sides, ceding them to the challengers.
“With a Trump administration, it’s significantly more likely than in prior transitions that they will simply change their litigation position,” said Sam Sankar, a senior vice president at Earthjustice, an environmental law organization. A Trump win could mean “very hard days for those folks at the Justice Department,” he said.
Some experts also said that a second Trump administration could be much more successful at defending its own climate and environmental policies in the courts than the first Trump administration was. That administration weakened a wide array of climate and environmental protections, but many of its actions were later overturned because the changes weren’t made according to the rules.
“They just sort of barreled through, ignoring the procedures,” said Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia University in New York. That made the changes susceptible to legal challenge. The “win rate” for federal agencies defending major rules during Mr. Trump’s presidency was just 31 percent, far lower than his predecessors’, according to a study published in Texas A&M Law Review this year.
A new Trump administration will most likely have learned a lesson from that, making it potentially more effective if it tries to significantly weaken the E.P.A. and other regulatory offices or to roll back rules limiting mining, drilling and emissions. Moves like those are widely expected if Trump wins.
That said, Mr. Gerrard noted that it could be tougher for a Trump administration to overturn some Biden administration regulations in court because the Biden team was more methodical in trying to make its rules “legally bulletproof.”
Daniel Farber, an environmental law professor at the University of California, Berkeley, said that several recent Supreme Court rulings on administrative law that had been criticized by liberals could, somewhat paradoxically, make it easier to thwart Trump administration policies.
One example: the court’s decision in June to effectively end a legal precedent known as Chevron deference, which allowed federal agencies with technical expertise to determine how to interpret and implement laws. That decision could make it easier to oppose a federal agency’s rules during a Trump presidency, as judges are given greater leeway to interpret how to apply laws themselves, rather than deferring to the agencies by default.
Another key issue before the Supreme Court has been the “major questions doctrine,” or the notion that Congress — not the executive or judicial branch — should be responsible for major policy shifts. Industry groups and Republican officials have used the doctrine to oppose climate rules, saying that federal agencies cannot impose regulations to force companies to move away from fossil fuels.
But Mr. Farber noted that during a future Trump administration, environmental groups could argue the same thing, just in the other direction: that an agency’s rollback of a regulation raises a “major question.”
“Clearly we’re just going to have tons of litigation over these agency rules,” Mr. Farber said.
The venues for new cases could also shift. Republicans have filed lawsuits in Southern courtrooms dominated by like-minded judges, whose decisions are reviewed by the conservative federal appeals court in New Orleans. Democrats, in turn, would be likely to turn to courts that are overseen by appellate judges in San Francisco or Boston. Nationally applicable E.P.A. rules are litigated in the appeals court in Washington, which is dominated by Democratic appointees, although disputes have arisen about which cases belong there.
One rule being challenged right now in federal court is a Securities and Exchange Commission policy that requires publicly traded companies to publish information on their emissions and on the business risks they face from global warming. A Trump administration could stop defending the lawsuit in federal court and overturn the rules.
“It’s hard to see a world in which a Republican-led S.E.C. continues to vigorously defend rules written by their Democratic predecessors,” said Michael Littenberg, who leads a unit focused on corporate social responsibility at the law firm Ropes & Gray.
However, Mr. Littenberg said, many companies are already voluntarily disclosing increasingly detailed climate-related information, a trend he believes will endure. California has also announced its own more stringent corporate climate-disclosure rules, as have other government bodies around the world, including the European Union.
“The train has left the station on climate disclosures, whether it’s voluntary or mandatory,” Mr. Littenberg said.
The debate over environmental, social and governance principles in investing is also playing out in the courts. The Trump administration had issued a rule restricting employee retirement plans from using them, which was then changed by the Biden administration. Utah is currently leading a federal-court challenge to the new rule.
Josh Lichtenstein, another lawyer with Ropes & Gray, said a new Trump administration would most likely change the rule again.
In addition to making policy, presidents can, of course, appoint federal and Supreme Court judges, as Mr. Trump did prolifically while in office. That can affect the outcomes of all sorts of cases, including one brought by Honolulu against Sunoco and other oil companies in state court in 2021. The companies have asked the Supreme Court to review the Hawaii Supreme Court’s decision that the case can proceed to trial.
The lawsuit alleges that the companies caused “a substantial portion” of the effects of climate change on the city, like a rise in sea level and extreme weather, and that they should pay for adaptation projects. The case also accused the companies of promoting “false and misleading information” about fossil fuels.
It is similar to about two dozen other cases filed by state and local governments across the country against oil and gas companies. And the fate of the Honolulu case could determine what happens in those closely watched cases.
The companies have argued that the lawsuits are a backdoor way for states to regulate global carbon emissions, which would be outside their power. The Supreme Court — now dominated by a conservative majority, thanks to Trump appointees — could take up the Honolulu case and decide that it is pre-empted by federal law and should be thrown out, setting a precedent that would affect the whole batch of cases.
The outcome wouldn’t be directly affected by the winner of the presidential election. But the Supreme Court has invited the solicitor general, Elizabeth Prelogar, a Biden appointee, to file a brief expressing the government’s views. If Mr. Trump becomes president and appoints her successor before she has submitted a brief, that person could take a very different view, which could help sway the court on the question of whether federal law pre-empts Honolulu’s claims.
An across-the-board defeat for those cases would amount to an enormous change in the landscape of climate litigation. “A Supreme Court decision saying that those lawsuits can’t proceed would be a major shot in the arm for the oil industry,” Mr. Sankar said.
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