Meet the Lawyers Beating Back Trump’s Reckless Environmental Policies — and Winning

22 September 2019 | WASHINGTON | Drew Caputo was sitting on the couch at his home in the Bay Area watching the election returns on November 8th, 2016. As soon as it became apparent Trump was going to win, Caputo, a senior lawyer with the group Earthjustice, had two immediate thoughts: The first was that a Trump administration would be nothing short of a disaster for the environment, climate, and public health.

The second thought, he says, was: “Time to go to work. Time to go to the mattresses.”Caputo and his colleagues quickly identified several critical issues that Trump might go after and formed internal teams to prepare for the worst. One potential disaster, he and his colleagues envisioned, was the undoing of the Obama administration’s efforts to protect parts of the Arctic, Atlantic, and Pacific oceans from oil and gas exploration. Even before Trump was sworn in, lawyers at Earthjustice had started lining up potential plaintiffs and honing their arguments to block a fossil-fuel free-for-all in the fragile ocean waters. “We knew the Trump guys would be an environmental wrecking crew and we wanted to be in a position to respond immediately,” Caputo says.

Sure enough, in April 2017, Trump signed an executive order to throw open the Arctic and parts of the Atlantic and Pacific oceans for oil exploration. Within a week, Earthjustice and a coalition of groups including the League of Conservation Voters, Sierra Club, and Natural Resources Defense Council sued Trump to block the order.

Almost two years later, a federal judge struck down a key section of Trump’s executive order, calling it “unlawful and invalid.” The Obama-era protections would “remain in full force and effect unless and until revoked by Congress.”

Caputo was visiting colleagues in Juneau, Alaska, not long afterward when a breaking news story lit up their phones. David Bernhardt, Trump’s new Secretary of the Interior, had told the Wall Street Journal that he was shelving the agency’s plan to expand offshore drilling. The administration had appealed the court’s decision, but Bernhardt said he wouldn’t push ahead on a new drilling plan until the legal fight played out, a process that could take years. “By the time the court rules, that may be discombobulating to our plan,” Bernhardt said.

Caputo and his colleagues traded high-fives. The ocean waters in question were safe from new oil and gas exploration — at least for now. To top it off, the Interior secretary himself had admitted that the litigation brought by Earthjustice and its allies had foiled his plans.

“I said, ‘We’re the discombobulators,’” Caputo says.

THINK BACK to early 2017. One of the biggest fears about a Trump presidency was the damage he would inflict on the environment and the climate. And we were right to be afraid. The administration has unleashed an onslaught of attacks on environmental safeguards — reversing or freezing regulations, making public lands and protected waters available for extraction, and doling out tax breaks and policy tweaks to cronies in the oil, gas, and coal sectors. At a moment when the U.S. needed to take drastic action to combat the global climate crisis, Trump and his industry-loving underlings like EPA chief Scott Pruitt and Interior Secretary Ryan Zinke were poised to take us back in time and risk the future of the planet.

Trump and company have had some notable successes, but two and a half years in, they have failed a lot more than they have succeeded. Waiting for them at every turn has been a network of lawyers who work for the nation’s leading environmental groups. These lawyers have sued the administration at a breathtaking clip. And in the cases that have been decided, they’ve won almost every time. It’s a David-and-Goliath story that doesn’t dominate the headlines or send the Twittersphere into frenzy. But measured in lives saved and planet-wrecking policies thwarted, it’s one of the most consequential stories of the Trump era.

Consider the raw numbers: Since Trump took office, the Natural Resources Defense Council has sued the administration — including the Environmental Protection Agency, the Commerce and Interior and Energy departments, and yes the president himself —more than 90 times. That’s one lawsuit every 10.8 days. Of the 53 cases that have been resolved, NRDC has won 49 of them. That’s a 92 percent win rate.

Earthjustice, for its part, sued the administration 120 times in the first two years of the Trump presidency. In the 17 cases where there’s been a major decision, Earthjustice has won 16 times and the administration just once.

These victories include forcing the EPA to implement new smog standards that will prevent an estimated 230,000 asthma attacks per year, delaying the construction of the Keystone XL tar-sands pipeline, restoring federal protections for grizzly bears living in or near Yellowstone National Park, and preventing the EPA from scrapping a chemical-safety rule that would protect up to 117 million Americans.

It’s not uncommon for multiple environmental and public-health groups to bring cases together alongside state attorneys general, and lawyers for these groups stress how much of their success was due to the unprecedented amount of collaboration across the environmental movement. “We’re more coordinated and better coordinated because there’s just so much more going on,” says Aaron Colangelo, the co-director of litigation at NRDC.

Rolling Stone spoke with half a dozen lawyers on the front lines of the fight against the Trump administration’s war on the environment. All of them say they knew from the moment Trump was elected that they would have to prepare for an administration hell-bent on dismantling the progress of the Obama years and handing the keys of government over to private interests. “We knew that it was all vulnerable,” Colangelo says. “I don’t think we anticipated that it would be as bad as it has been. We sued Obama. We sued Clinton. We sued Bush. But it’s never been anything like this.”

IT DIDN’T take long for environmental lawyers to pick up on the Trump administration’s strategy. From day one, there was a complete, extreme, across-the-board bias against regulations. Regulation? Bad. Coupled with that was a knee-jerk reflex to try to undo the previous president’s work. Obama? Bad. This was hammered home by the so-called Priebus memo, a directive issued by Trump’s first chief of staff, Reince Priebus, on the first day of the new administration. It ordered a government-wide freeze on new regulations. Even rules that Obama had signed and were on their way to the printers were frozen until further notice.

One of those was the mercury effluent rule. Five tons of mercury was going into the nation’s rivers each year for the simple reason that dentists removed fillings from their patients and flushed them down the sink without any way of catching the fillings’ mercury. Dangerous levels of the toxin ended up in rivers and in fish, endangering pregnant mothers who ingested the fish, putting their unborn children at an increased risk of learning disabilities, lower IQ, and impaired fine motor skills.

In its final days, the Obama administration passed a rule that required dentists to use a trap to catch the mercury. The environmental groups supported it, as did the main lobbying group for dentists. But because the mercury effluent rule hadn’t been published in the Federal Register yet, the Priebus memo blocked it from going into effect.

NRDC sued over the reversal in one of the earliest cases brought against the Trump administration. They argued — as they and other environmental groups would in dozens of future cases — that it was illegal to suspend a rule for political reasons; there needed to be science and facts to back up such a decision, just as there had been when the rule was put into place. In this case, there were no such facts, and the EPA didn’t even bother to defend its decision in court, capitulating without a fight.

Early on, it looked as if the administration was just trying to see what it could get away with. Lawyers call this the no-plaintiff rule. “The impression I got was that their underlying strategy was: It’s only illegal if we get caught,” says Patrice Simms, vice president for litigation at Earthjustice.

Pruitt, Zinke, and Commerce Secretary Wilbur Ross seemed to be pushing to roll back laws and regulations as fast as possible in an effort to impress their new boss. But in their haste to blow things up, they often ignored the laws and procedures for how to make policy. If you run out of Ambien and want to put yourself to sleep, try reading the Administrative Procedures Act, which spells out the process for creating or eliminating regulations. Trump officials flat-out ignored it, which left them vulnerable to lawsuits.

With a chuckle, Spalding adds, “These are not evil geniuses.”

But that didn’t mean environmental lawyers could let their guard down — and not every case would be so easy. They assigned staffers to scour the Federal Register (another good Ambien substitute) and the websites of government agencies for any clues about new policy decisions. They also got tips from whistleblowers to look out for upcoming announcements or new policy proposals released without a press release or advisory notice. One time, NRDC lawyers got an anonymous package from an EPA insider. It looked like the person had written the address with their non-dominant hand, and it contained a copy of a 1977 U.S. Attorney General’s opinion that could help them in an ongoing suit against the EPA. “It looked like a ransom note,” Colangelo recalls.

The environmental movement’s legal strategy had another key element: the Freedom of Information Act. After Trump’s election, the Sierra Club was barraged with offers from outside lawyers to help out in any way they could. Elena Saxonhouse, an attorney at the Sierra Club, had an idea to put those volunteer lawyers to work filing FOIA requests for documents and, when necessary, suing the government to get them. The FOIA Force, she would go on to call them.

It’s typically the job of Congress to conduct oversight of federal agencies, but environmental groups couldn’t count on a Republican-controlled Congress to do that. So the FOIA Force, led by Saxonhouse, filed dozens of sweeping document requests. They wanted copies of all of Scott Pruitt’s communications with industry groups and conservative media outlets. They asked for emails sent and received by Pruitt’s closest aides and assistants. They requested Interior Secretary Zinke’s phone logs, calendars, and meeting records — and when the Interior ratcheted up the secrecy of how it operated, the Sierra Club sued the department to get those records too. When the agencies fought those requests, Sierra Club took them to court and each time forced them to hand over documents. As of last month, the Sierra Club had received more than 100,000 pages of emails from the EPA and Interior; many thousands more are still on the way.

The documents obtained by Sierra Club contained damning revelations. They showed how Pruitt coordinated with a former foreign lobbyist to arrange a personal getaway to the Outback while in Australia supposedly on government business. How Pruitt’s staff shielded him from public scrutiny and “unfriendly” journalists. How one of Pruitt’s closest aides reached out to the head of Chick-Fil-A to set up a meeting about making Pruitt’s wife a Chick-Fil-A franchisee. (Fun fact: A legal intern first discovered the Chick-Fil-A email buried in a trove of documents.)

The uncovering of these dealings prompted multiple ethics investigations and, it’s fair to say, contributed to Pruitt’s resignation in 2018. “We’ve uncovered things that we never would have if we had targeted our searches more narrowly,” Saxonhouse says. “There’s no trust at all in the people who are supposed to be protecting our air, water, and lands.”

THERE IS an ambivalence, a catch in the voice, when these lawyers reflect on the past two and a half years. They know they’re doing the most important work of their lives. “To be a participant in [this work] just makes me feel lucky to have the job,” Mitch Bernard, chief counsel at NRDC, tells me. “This is the reason I became a lawyer.”

A few minutes after we hang up, Bernard calls me back. He wants to clarify something. He feels good about the work he and his colleagues are doing but not good that they have to do it in the first place. “I don’t want to seem like I’m sugarcoating or passing over how horrible this situation is,” he says. “There’s also this darkness.”

This is how Drew Caputo of Earthjustice puts it: “I’m proud of our response, but the fact that we need to do it really pains me. When I started my career in the 1990s, environmentalism was [still] a bipartisan thing. Some of the most important environmental laws were signed into law by Richard Nixon.”

The environmental groups suing Trump have sued Democrats and Republicans in the past. “But the Trump folks, they’re just at a different scale,” Caputo adds. “Even tough administrations in the past, we’ve been able to talk to them on some issues. The Trump guys are just an unvarnished extension of industry.”

And sometimes the industry wins. While environmentalists have amassed a great track record fighting Trump’s agenda, there have been painful setbacks. These lawyers couldn’t stop the administration from repealing Obama’s Clean Power Plan or chipping away at the Endangered Species Act — two major accomplishments of the Trump crew so far. Environmental groups can sue to reverse those setbacks — several suits were filed last month against the EPA’s weak replacement for the Clean Power Plan, and litigation challenging the latest endangered species changes is coming soon — but that will take years to wind through the courts. “It’s heartbreaking to realize the limitations of a successful litigation strategy,” Colangelo says. “We’re winning cases to stop the worst things the administration is doing, but that isn’t enough to make them do the right thing.”

Nor can these lawyers prevent Trump’s allies in Congress from carrying out his deregulatory agenda. Environmentalists may have stymied Trump’s efforts to expand offshore drilling in the Arctic, Atlantic, and Pacific oceans, but they failed to prevent Sen. Lisa Murkowski (R-AK) from adding language to the 2017 Trump tax bill to open up the Arctic National Wildlife Refuge for oil drilling, a longtime goal of the fossil-fuel industry and the Republican Party. (Conservation groups are considering legal action to stop the measure from going forward.) So it goes in the Trump era — win a protection in one case only to watch it flare up in a different direction.

What keeps these lawyers going, they say, is the fact that the nation’s judicial system has held firm at a time when the country’s other institutions are wobbling. They’ve won cases in front of Bush and Trump appointees and lost them in front of Obama and Clinton appointees, and vice versa. “The story that is not frequently enough told these days is that the courts have held up remarkably well,” Bernard says. “That’s the one branch of federal government that I think is shining in this moment because they are being very vigorous enforcing the law without regard to what the politics of the situation might be.”

The danger for the environmental movement is that the second wave of Trump appointees — ex-coal lobbyist Andrew Wheeler at EPA, ex-oil and gas lobbyist David Bernhardt at Interior, and so on — prove more effective at undermining laws and regulations than their bumbling predecessors. Just this week, the Wheeler-led EPA announced its plan to revoke California’s ability to set tougher standards on tailpipe emissions, the leading source of pollution in the country.

“Pruitt and Zinke got in their own way in ways that Wheeler and Bernhardt are less likely to do,” Bernard says. “That will make it harder for people like us to challenge what they’re trying to do. Because their agenda is not more moderate. It’s just their way of going about putting it into effect that appears more moderate. That’s a danger for us.”

One stealthy tactic used by the current crop of administration officials is attacking the underlying science as a way to gut environmental and public-health protections. You can have a strong law to protect the air we breathe, but you can undermine that same law by mandating that the agency can only look at certain kinds of studies that narrowly define the problem. “They’re attacking the underlying architecture of the science,” says Patrice Simms of Earthjustice.

If anything, the Trump administration appears set to take more aggressive action between now and the 2020 election, like dismantling nationwide tailpipe emissions standards or weakening the Clean Water Act. “We’re going to have fights that are just as hard or harder over the course of the next year and a half,” Simms says. “Even if there is not a second Trump administration there is a lot of stuff that’s going to have to be fixed. The work is not going away anytime soon.”