Why Trump Keeps Losing Climate Cases in Court

process will be done. But federal courts have been faulting the Trump administration for its lack of concern about climate change, and the administration has a string of court losses to prove it. Time and time again. Federal judges have rebuked the Interior Department for selling drilling rights or advancing oil projects without considering the real consequences to a warming planet.

Joining me as environmental law professor Pat Parento of Vermont Law School, so Pat explain why federal judges have criticized the Interior Department six times since Trump became president. Most of these cases have been brought under the National Environmental Policy Act. Of course, now fifty years old, are magna

carta as they say of environmental law. And what's striking about this space of cases is that either the Trump administration and the Department of Interior haven't learned anything over the last three and a half years, or they learned, but they're not going to change their way, so they continue the same mistake, which is NIPA requires you to look into the future and assess the cumulative effects of all of this oil and gas leasing, not only the

direct effects of the leasing itself on water and air and wildlife habitat, but also of course the climate effects of continuing to develop all this fossil fuel and burning it, both coal and gas. And the pattern is absolutely clear.

The courts have said over and over again, you have to make your best estimate of what the impact of all of this leasing and drilling and production is going to have in light of the science, the climate science, which is telling us we can't keep burning all this stuff. We've got to leave much of this in the ground. And yet you seem oblivious to what the science is saying and to the effects that are threatened by this.

So the courts have been really clear, there's no mystery about what the Department of Interior should be doing they're just adamantly refusing to do. It is that the agencies are leaving out the climate change part of the equation

when they're dealing with more traditional environmental concerns. Largely, that's true in some of these cases, some of the impacts on wildlife habitat, for example, the sage ground, which is a highly threatened bird that's an indicator species versus the sage brush ecosystem, right, And like all these habitats that's being destroyed by lots of different activities grazing and mining and so forth. But oil and gas is a big

part of that threat to that particular species. So in some cases you're gonna find decisions saying you've got to take account of the cumulative loss of habitat to threaten species. But for the most part, these cases are all about the cumulative loading of the atmosphere with carbon dioxide and methane and these other greenhouse gases. And the courts are also saying you've got to conduct what's called the social cost of carbon. You're touting the benefits of all of

this oil and gas development. Of course, Trump's energy dominance agenda, you're quick to point out all the economic benefits like the revenues that have been generated by all this development to the government, But you're not counting the costs. You're not acknowledging that all of this development does come not only with an environmental cost, but with an economic cost.

Because one thing we know about getting a handle on climate change is the longer that you delay it, the more expensive and difficult and at some point impossible it becomes. So that's another thing the courts are pointing out. You have to be fair and balanced in your analysis benefits yet, but costs as well. Are the courts consistent in this application or are some courts more conservative and perhaps not going as far as other courts. No, this is one

where the courts are absolutely consistent. There's no split of authority in terms of what does the deeper require of the kinds of analysis that's been missing. No, all of the courts are in agreement on this. And interestingly, the judges that are involved here, you might think that they were all quote Obama judges, they're not. One of them is actually the Trump appointed judge. Another one is a George W. Bush appointee. So this is not a partisan

judicial issue. This is all the courts looking at every single one of these cases and all of them concluding you're just not doing what the law that's been on the books for fifty years requires you to do. You're not even following your own regulations. In many cases, you're trying to fast track this development, push your way through the law, cut corners, ignore impact. And now the Trump administration is trying to gut NIPA itself through this Council

on Environmental Quality, which is I guess a misnomer. At this point. They're proposing to radically alter the rules to implement NIPA and eliminate things like considering cumulative effects. It's just stunning what's being proposed. So is this just the Trump administration or was the Obama administration also at fault in this regard. I would have to lay some of the blame on Obama. He was the first president to

really ramp up boiling gas development. At the time, the thought was that natural gas was a much better alternative to coal, which is true in many respects. Its it's probably not as advantageous as some have claimed because we don't know what the rate of loss of methane leak each is. But put that aside, Obama definitely at least a lot of these areas that have now been challenged and put on hold. So there's blame to go around.

For sure, it isn't just a Trump issue. But it's also true that Trump has radically ramped up the amount of leasing and has failed to take account of the constant message from the courts that you're doing it wrong and if you're gonna do this, at least do it in accordance with the law. So pat is this not only about developing fossil fuels but also about Trump's deregulatory agenda. It sure is. These proposed changes to the NIPA regulations is all part of the what I would characterize as

an assault on the foundations of environmental law. There are now one hundred one hundred different proposed role backs of rules and policies and guidelines, not only just ones that were adopted during the Obama administration, but going all the way back, as they said, all the way back to the beginning of the National Environmental Policy Act, the beginning

of the Clean Water Act. We're now seeing proposals to limit the ability of states to protect their water quality because the Trump administration is concerned that some states are using that authority to block pipelines and coal terminals and other fossil fuel infrastructure. What the states are saying, of course, we've been using this authority Congress gave us for four decades, and along comes the Trump administration and says, no, we're going to change the rules of the road on that

as well. So it's all part of the deregulatory agenda. Have these court defeats jeopardized any high stakes oil development plans on federal land, I think it has to have had some effects on the ability of these companies is to weather the downturn in demand for gas. There's a glut of gas on the market and oil for that matter, and a lot of these companies are looking at some pretty serious losses and even potential bankruptcy or reorganization types bankruptcies.

They've been counting these companies on ready access to federal lands at very favorable rates through these auctions, and if they can't get access to relatively cheap and easy to access oil and gas on public lands, they're going to have a hard time making it financially, at least that would be my view of it. So pat is it that the federal agencies c problems and just ignore them, or do they minimize them, or do they not even look for them. Well, they certainly are looking for every

way to avoid these lengthy, detailed analyzes. And I don't want to under estimate, um, the fact that it does take time and effort and modeling and data collection to do this kind of analysis. It's not a back of the envelope kind of thing. So you know, the agencies are are anxious to not have to go through that lengthy, complex, detailed analysis. That saves them time. They can get these auctions for these leases up quicker and sell them and move on to the next one. So that's part of it.

Some of it is they're trying to take advantage of some of the loopholes that are in the law. There's things called categorical exclusions and a variety of other potential ways to dodge some of these more detailed analyzes. So they're doing that as well. But the most striking thing to me is that they are just absolutely refusing to

follow the direction that multiple courts have given them. Um, you know, the judges have written thirty forty fifty page opinions lay being out what the law requires how you should try to comply with it, acknowledging the complexities and the challenges, giving the agencies some discretion and flexibility, but clearly laying out a blueprint for what they need to do if they want to prevent themselves from being stopped in court, ensued repeatedly. And yet despite all that, the

agencies continue to repeat the same mistake. It's the very definition of insanity, you know, repeating doing the same thing over and over again and expecting a different result. A drafted final rule under review at the White House would narrow the scope of agencies environmental reviews undern So is it exactly what the courts have said not to do. That's true, and those proposed changes are also of course going to be politic add and the Trump record in

court is the worst in history. New York University's Institute for Policy Integrity tracks every single one of the cases that are challenging all of these rollbacks, and there box score shows that the Trump administration has lost over of the cases where they've been challenged. So with regard to this proposed changes to the NIPA regulations, we're gonna see a repeat of what we've seen before I predict, which is the courts are not going to stand for it.

These these rules again have been on the books for fifty years. There are literally thousands now of court decisions interpreting applying the rules of the road under NIAPA, and all of a sudden, this administration comes along and says, forget all of that. We're going to change all of that. You're not going to have to consider these cumulative impacts because we know that takes too long and we don't want to wait for that kind of analysis. We want

to press forward with our energy agenda without that. So even though the Trump administration is losing in court with the analyzes they're doing today, they're counting on a change in the rules so they won't have to do that in the future. But I don't think that's going to happen either. And all it leads us with is a lot of uncertainty for the industry, for the public, for the communities that are affected by all this development. Um.

It just leaves us in a chaotic situation. And I hate to say it, but it appears to me that this administration really is not concerned about that. They in fact sort of welcome the chaos. It seems Joe Biden has said that if he wins the presidency, he's vowed to stop new oil, gas and colly seeing on federal land. Now, how difficult would that be to do legally? He could do that Politically, he's got to take account of the fact that in places like New Mexico, oil and gas

revenues are a huge part of that state's economy. And even with a progressive governor luhan In in office who's trying to bring New Mexico into a cleaner, less dependent on fossil fuel, that can't happen overnight, right So, I think what the Biden administration is going to find is the job of shutting down or phasing out, if you want to put it that way, oil and gas development on public lands is going to prove more difficult than

it may seem right now. In a campaign, it's easy to say what you're gonna do, but obviously reality in truths at some point. But legally, legally there's no question.

But what the Biden administration could do is to say we are going to not you're not going to offer any more leases, and they can start it in different probably areas of the West um And obviously it's going to have to be accompanied by some kind of call it stimulus package, if you will, but some kind of economic assistance to these states and communities that are so dependent on coal like Wyoming and on gas like in Mexico.

So it's going to have to be obviously part of a much bigger transition effort than simply stopping the leasing. The U. S. Army Corps of Engineers has been forced to suspend it's fast tracking of pipelines. Does that connect to this? Are there are the reasons similar or different? They they're similar and different. The Core of Engineers has what are called nationwide permits. One of them, number twelve, is designed to facilitate construction of pipelines and other sort

of linear projects, transmission lines and things like that. So that that kind of permit process, which is a sort of a streamlining permit process that's been on the books for a long time. But it's also true again that under the Trump administration, the Core of Engineers is cutting corners.

Um They've been stopped repeatedly. The Keystone XL pipeline has been stopped again, The Dakota Access Pipeline has been well it's it's it's actually constructed in operating, but the courts have said the core of engineers analysis of the risks from that pipeline are inadequate underneath and have to be

done again. And that judge, Judge Boisberg in the d C. District Court is considering whether or not to actually stop the flow of oil through the Dakota Access pipeline, which would obviously be a huge blow to the company and the people dependent on that that project. So you know, all of these different corner cutting moves are catching up, I would say, with the Trump administration. Thanks Pat. That's Pat Parento of the Vermont Law School. And that's it

for this edition of Bloomberg Long. I'm June Grossel. Thanks so much for listening. This is Bloomberg