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It’s judges, not Trump, who will decide Obama’s environmental legacy

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Environmental groups are ready to go to court

Donald Trump, our new president, has vowed to dismantle many of the environmental policies passed under President Barack Obama. But for the next four years, when it comes to climate policy, the place to watch isn’t the White House — it’s the courtroom.

For the past eight years, Obama has positioned himself as a global leader in the fight against climate change. At home, he’s passed regulations to lower emissions of greenhouse gases from cars and plants, he’s boosted renewable energy, and set new records for protecting public land. On the international level, Obama has spearheaded global climate deals like the Paris accord, signing bilateral agreements with top polluters like China to reduce CO2 emissions.

But all that is now in peril. Trump’s pick for the head of the Environmental Protection Agency is Scott Pruitt, a man who’s questioned the scientific evidence of human-made climate change. His transition team has sent an intimidating questionnaire to the Department of Energy asking for the names of employees who worked on climate policy (the Energy Department refused and Trump’s team later disavowed the questionnaire). He has picked Exxon Mobil CEO Rex Tillerson as Secretary of State. And he has vowed to dismantle one of Obama’s signature environmental policies in his first 100 days in office.

Environmental groups are already gearing up to fight any anti-climate action, and attorneys general from several states have vowed to bring the Trump administration to court. That’s where much of the fight over climate change and the environment is going to happen, likely for years to come. It’s hard to predict what the outcomes will be. Trump is set to nominate a new Supreme Court justice, as well as fill in more than 100 judicial vacancies all over the US.

The courts will “really decide the extent to which the Obama legacy is maintained or rolled back,” says Maria Belenky, director of policy and research at Climate Advisers. “The courts are the area of last resorts for a lot of environmental groups and a lot of states that have supported the Obama administration’s agenda.”

The Clean Power Plan, or CPP, is the core of Obama’s plan to reduce CO2 emissions to curb climate change. But dismantling it won’t be as easy, legal experts say; in fact, the CPP is already the subject of a heated legal battle at the US Court of Appeals for the District of Columbia Circuit and litigation is only likely to continue. Two dozen states and industry groups have sued the EPA, arguing that the agency overstepped its authority under the Clean Air Act. The DC Circuit court heard arguments in September but hasn’t made a decision yet. And whatever the Trump’s administration is going to do, more legal battles are likely to follow.

Trump’s EPA could ask the DC Circuit for a so-called “voluntary remand,” a motion that would essentially halt the case while the EPA reviews the complaints, according to Michael Gerrard, the director of the Sabin Center for Climate Change Law at Columbia Law School. The EPA could then take its time to review the case, basically stalling the enforcement of the CPP’s carbon-cutting requirements. But a group of attorneys general from several states — liberal and conservative ones — wrote a letter to Trump in December vowing to bring the administration to court if that were to happen.

“Be assured that we would vigorously oppose in court any attempt to remand the Clean Power Plan back to EPA so late in the litigation, and prior to a decision from the Court on the merits of the claims,” the letter read.

If the EPA waited for the DC Circuit to rule, and then decided to scrap the CPP altogether, lawsuits would still abound. That’s because the EPA has a legal obligation to curb greenhouse gas emissions based on a 2007 Supreme Court decision that defined those emissions are “air pollutants” under the Clean Air Act. In that ruling, the Supreme Court also asked the EPA to determine whether these pollutants can endanger public health and welfare. In 2009, the EPA issued the so-called endangerment finding — the finding, based on scientific evidence, that CO2 and five other global warming pollutants are dangerous for the public. That finding was at the base of Obama’s entire environmental policy.

If Scott Pruitt’s EPA tried to roll back the endangerment finding, the Natural Resources Defense Council would sue them, says David Doniger, the director of NRDC’s Climate & Clean Air Program. And the NRDC would probably win, according to legal experts. “I think it would be really difficult to roll back the endangerment finding,” says Vicki Arroyo, the executive director of the Georgetown Climate Center at Georgetown Law. “It would be really difficult at this stage to argue in a legally defensible manner that there is not endangerment given what we’re seeing with the Greenland ice melt, Antarctica, the more frequent severe storms, long droughts — many of which have been connected to human responsibility for CO2 and other climate-related emissions.”

The courts are likely to hear cases on a hosts of other environmental issues as well. If the federal government fails to protect species under the Endangered Species Act, for example, environmental groups could sue federal agencies for inaction. If Trump decides to undo some of the controversial national monuments designated by Obama under the Antiquities Act, like the Bears Ears National Monument in Utah, that could also wind up in the courts. “The courts are going to be very, very busy evaluating the limits of American administrative laws,” says David Victor, an expert on international climate policy at the University of California, San Diego.

How the courts will rule is difficult to predict. Trump will be able to nominate a new Supreme Court justice, skewing that court’s balance to the conservative side. If environmental cases are picked up by the Supreme Court, a new composition will matter for the decision. “The vacant Supreme Court seat is going to be huge right now,” says Belenky at Climate Advisers. Not as important, but equally worrisome for environmentalists, are the more than 100 judicial vacancies across the US that Trump will be able to fill with his appointees.

A couple of the openings are at the Second Circuit, which has emerged as an important circuit for cases about how water is regulated under the Clean Water Act, according to Robin Craig, an environmental law professor at the University of Utah. Other openings are at the Ninth Circuit, which is important for endangered species cases, according to Gerrard. “The Supreme Court will get much of the attention but the federal courts pose a much more immediate opportunity,” says Victor at the University of California, San Diego.

As Trump steps into office, environmental groups are watching out for rollbacks to climate policy, “fully ready to hit the green button on litigation,” Belenky says. Some are confident that the courts will eventually sway on their side, if only because the American public — including Trump voters — overwhelmingly want a clean environment to lead healthy lives.

“I think the Trump administration can do many damaging things but ultimately the law is on our side, so we’ll win cases if we have to bring them against these rollbacks, and we’ll also find that they’ll lose in the court of public opinion,” says Doniger at the NRDC. “The public supports these safeguards, the public wants clear air and water, the public wants a safe climate.”