Many people have heard of the Clean Water Act, Clean Air Act, and Endangered Species Act. But fewer are aware of another, older law that is a cornerstone of our modern government. It’s a law that has benefited all Americans. You may even have taken advantage of it directly, even if you didn’t know it.

Meet the Administrative Procedure Act

Congress passed the Administrative Procedure Act (APA) in 1946, a time when agencies were beginning to assume a bigger role in effectuating and enforcing federal laws. Congress wanted to set some guardrails to make sure they were working for the public — and within the law.

The APA sets out the rules of the road for how agencies should carry out their duties under the laws they administer. It’s the operating system that guides the executive branch, and its provisions are so commonsense that all states now have their own version of the law.

The APA gives you a voice

One of the most important things the APA did was to define a rulemaking process that agencies must follow when they create or enforce rules (also known as regulations). Under the APA, agencies must do the following before they make or change most rules:

• Publish the proposed rule in the Federal Register, the daily newspaper that tracks federal regulatory activity;
• Provide a reasonable time (usually 30 or 60 days) for the public to comment on the proposal and explain how to do so;
• Hold, in some cases, actual meetings to make sure all perspectives are heard; and
• Review the comments and explain how it incorporated or rejected any substantive input in the final rule.

Just about anything goes when it comes to comments: People can express support or opposition to the proposal, explain its potential impacts, challenge its assumptions, or propose alternatives. Interested researchers and policy experts often weigh in. And, of course, private entities often explain what the rule would mean for their bottom lines.

Agency rule makers need to be good rule followers too. If they fail to follow the APA’s process, their new rule will likely get tossed out by a judge. For example, in April 2025 President Trump instructed his agencies to roll back regulations protecting some of the oldest and most pristine coral reefs on the planet. Instead of proposing a new rule and seeking comments, the agency simply wrote a letter announcing that the old rule was rescinded. Thanks to the APA, we were able to get a court to quickly vacate the letter.

The APA keeps agencies accountable to the courts — and to Congress

In addition to telling agencies how to go about making rules, the APA also bars them from taking actions that are “arbitrary, capricious, an abuse of discretion.”

This standard isn’t just about addressing comments. If an agency disregards important information, relies on faulty data or assumptions, or applies outdated or flawed science, it had better be ready to explain that in court.

For example, the APA gave us the tools we needed when the Environmental Protection Agency (EPA) relied on outdated studies and ignored its own research to allow the use of more crop-based biofuels like ethanol. We challenged the rule in court and won.

The APA also brings other laws to life by prohibiting agency actions that are “otherwise not in accordance with law.”  So even if an agency checks all the notice-and-comment rulemaking boxes and bases its action on solid science, it still can’t publish a rule that contradicts a law passed by Congress. To pick current example we are fighting, if Congress passes a law requiring the EPA to issue environmental justice grants, the EPA can’t decide on its own to terminate those grants.

The APA also requires agencies to act within a reasonable time frame. For example, back in 2021 Earthjustice submitted a petition to EPA on behalf of farmworkers and public health groups asking it to ban organophosphate pesticides. In June 2025, after four years of agency inaction, we sued to compel the agency to act on our petition.

The APA and the Trump administration

Donald Trump has been issuing a barrage of executive orders telling agencies from the Food and Drug Administration (FDA) to the EPA to roll back regulations and end important programs. At the same time, his appointees are doing everything they can to push through policies that range from the ill-advised to illegal. In this rush they are ignoring, skirting, or outright flouting the APA.

This isn’t the first time a Trump administration has tried to ride roughshod over our procedural laws. The APA played a role in many of Earthjustice’s victories against the first Trump administration, helping us win 84% of our cases. Thanks to the APA, we were able to save rare whales, cancel improperly issued offshore drilling permits, and stop a harebrained scheme to pump water out of the Mojave Desert.

In the current administration, we’ve already used the APA to get the U.S. Department of Agriculture to restore climate-related pages and websites that it had tried to purge, including sites that gave farmers information on how to access funding for critical conservation practices.

We’re also using the APA to fight the administration’s efforts to claw back funding that was approved under the Inflation Reduction Act and the Infrastructure Investment and Jobs Act. Those cuts threaten many important initiatives, including investments to build a national network of electric vehicle charging stations and to strengthen communities facing the greatest impacts from pollution and environmental degradation.

Some may find it unsatisfying to rely on a procedural law to challenge this administration’s actions. People also grumbled when federal prosecutors resorted to tax laws to take down mob boss Al Capone in the 1930s. But a smart litigator uses every tool at their disposal to secure justice. And every one of the 200 lawyers here knows how to use the APA.

The post The Law That Can Stop Trump’s Environmental Agenda is One You’ve Probably Never Heard Of appeared first on Earthjustice.

Since taking office in January, President Trump has signed at least 130 EOs, plus more than 75 presidential proclamations and memoranda, on everything from “Restoring Truth and Sanity to American History” to “Eradicating Anti-Christian Bias” to “Ending Procurement and Forced Use of Paper Straws.” (See the full list.) That’s significantly more action than we’ve seen from Congress: In the same period of time, they have passed just five laws.

No issue, it seems, is too big or too small for the president to issue an EO about it. He’s issued orders about law firms he doesn’t like (including my former employer WilmerHale), ideas he thinks are fun (like starting a sovereign wealth fund or declassifying the JFK investigation), and, occasionally, policy platforms he actually ran on (e.g., bringing back “America’s Beautiful Clean Coal Industry”). Many offer a healthy dose of Orwellian irony (“Ending the Weaponization of the Federal Government”).

So let’s talk about EOs: what they are, what they can (and can’t) do, and why we should (and shouldn’t) care about them.

First, let’s make one thing clear: An executive order isn’t a law. An EO is just a statement about the president’s policy preferences and how they want to exercise authority. It’s essentially a speech to federal workers, with the public listening in. And like most speeches, they don’t deliver on-the-ground impact on their own.

That’s important. Because while the president is well within his authority to withdraw EOs issued by prior presidents or to issue instructions to the executive branch, he has no power to direct the behavior of states, companies, or people who don’t work at the federal government. He can’t change federal law by fiat, he can’t unilaterally abandon the responsibilities Congress has given to the executive branch, and he can’t direct anyone else to do these things either. And (sorry, DOGE) he does not have the power of the purse.

So when the president dashes off yet another new pronouncement to distract us from yet another governmental gaffe or misstep, I encourage you to take a deep breath and ask some basic questions. Like: Is this something that the agency was already doing anyway? (It often is.) Does the president have any authority over the people or organizations he purports to order about? (He often doesn’t.) Is he trying to rewrite a law or regulation from his seat in the Oval Office? (Often yes, and he can’t do that.) Would following the instructions in the EO violate a law or the Constitution? (Alas, often yes.)

This isn’t to say that Trump’s EOs aren’t doing damage. Or that they aren’t potent messaging tools. And I give the guy credit: He is drowning the public, the media, and his political opponents in them. He is also keeping nongovernmental organizations off balance. We never know when another EO will drop, and when one does, we have to get right to work to understand its actual impact and whether it’s worth opposing in public or in court.

Here at Earthjustice, we are watching carefully for two specific types of EO. One type orders agencies like EPA not to enforce an existing law or regulation. The other type purports to rewrite or repeal regulations without giving the public a real opportunity to comment, as a foundational law known as the Administrative Procedure Act requires.

Sometimes we get an EO that falls into both categories. For example, check out the order titled Zero-Based Regulatory Budgeting To Unleash American Energy. This EO orders federal agencies to insert one-year “sunset clauses” in any existing regulation issued under laws like the Endangered Species Act, the Energy Policy Act, and the Mining Act. Going forward, it also calls for any new regulation under those acts to have a sunset clause of five years or less. And it instructs agencies to stop enforcing those new regulations as of the sunset date.

Aside from being illegal, this idea is bad for several reasons. Businesses and organizations can’t plan when they don’t have regulatory consistency. Writing sound regulations takes time, and if the government is constantly having to rewrite them, very little can get done. And this approach will likely lead to even more dramatic swings in government policy each election cycle, as administrations of both parties simply wait out and replace regulations they don’t like.

We are watching carefully to see how the sunset date provision plays out. In doing so, we’re keeping a few things in mind. Courts have traditionally stayed out of second-guessing agency decisions about when and how to enforce regulations. But the Supreme Court is losing interest in deferring to agency expertise — and in this case, we may be able to use that shift in norms to challenge agencies that drop the ball on enforcement.

We also know that government isn’t the only entity that can play the enforcement game. Many of the laws listed in the EO also allow regular people to sue to enforce a law. Earthjustice often represents those people in so-called “citizen suits.”

Insofar as the rest of the order tells agencies to summarily rewrite or rescind “unlawful regulations,” my thought is “bring it.” For our lawyers, repealing a regulation without following APA procedures is like giving Julius Erving a basketball and a head start. It’s so patently illegal that I would expect some industry players to warn the administration against it behind closed doors. The business sector likes certainty, so chaotic and lawless deregulation is not in their interest.

It’s still early days. The president has issued tons of EOs, but his agencies have been too busy demolishing themselves to act on them. So we can’t yet say for sure who will be affected and how — which we need to know to establish legal standing to sue. We also know that more EOs are coming.

For now, know this: We are watching out for environmental policy actions that have real on-the-ground impact, and we are reviewing every one of them for legal weaknesses that we can exploit.

The post For Real, What Do Trump’s Executive Orders Do? appeared first on Earthjustice.

(Illustration by Rob Chambliss)

Thanks to unlucky timing and scorched-earth politics, Americans are now governed by the most conservative Supreme Court of the United States in modern history. Among its distressing actions, the six-justice supermajority is aggressively pursuing an anti-environment agenda driven by, among others, the nation’s biggest polluters.

Two recent decisions showcase the current Court’s attitude to environmental protections. In West Virginia v. EPA, decided in June 2022, the Court struck down the Obama-era “Clean Power Plan” (CPP). The CPP had aimed to reduce carbon dioxide emissions from power plants by requiring them to shift towards renewable sources. The Court held that the Environmental Protection Agency (EPA) couldn’t do this because the Clean Air Act only allows the EPA to mandate pollution controls that plants can implement “inside the fenceline” of the facility.

Then in Sackett v. EPA, decided in May 2023, the Court held that the EPA could not require an Idaho couple to obtain a permit before filling in wetlands on their property. Sackett reversed prior decisions by holding that the language of the Clean Water Act does not extend to protect wetlands unless they are “as a practical matter indistinguishable” from surface waters.

I have watched the Supreme Court carefully from the days when I clerked for Justice Sandra Day O’Connor. And like all of Earthjustice’s more than 200 attorneys, I pay special attention to the Court’s decisions on environmental and administrative law so that we can shape our case selection and legal strategies accordingly. (Skip to the bottom of this article to learn how Earthjustice is leading in this new legal landscape.) What’s striking to me right now is not just the direct consequences of Sackett and West Virginia v. EPA, but the reasoning behind these decisions.

The Congresses that wrote bedrock laws like the Clean Air Act and Clean Water Act used sweeping language to describe ambitious environmental goals, and then gave agencies broad authority to achieve them. The visionaries who wrote and passed those laws knew that legislatures can’t cover every detail, and that scientists, not politicians, should be the ones identifying and addressing new problems as they emerge. Environmental protection in the U.S. therefore depends on the understanding — settled since the New Deal — that Congress has robust regulatory power, and that Congress can broadly delegate that power to expert agencies like the EPA.

Sackett and West Virginia v. EPA chip away at both of those assumptions. In both cases, the Court’s conservatives expressed concern about the scope of Congress’ authority to regulate private activity and the extent to which Congress can delegate that authority to federal agencies. And in both cases, conservatives went out of their way say that federal environmental regulations are among the worst examples of “big government gone wrong.”

It’s not surprising to me that the Court’s conservatives are so openly hostile to the work of federal agencies, and to environmental regulations in particular. Their philosophy is the product of a decades-long campaign by polluting industries to capture our federal courts. Those industries spent many years and many millions lobbying Congress to rewrite our foundational environmental laws and asking presidents to defang agencies like the EPA. Those efforts largely failed because Americans want elected officials to protect the environment. So the industries — primarily the oil and gas industry — turned to nurturing conservative and anti-government legal thinkers, then pushing to get them on the federal bench. They wanted courts to deliver what the political branches had not: sweeping deregulation. Put simply, the Justices of our Court were specifically chosen for their hostility to the federal “administrative state” that regulates private industry.

Sackett and West Virginia v. EPA are therefore part of a broader campaign to reshape the federal government in ways that limit its ability to regulate in the public interest. The Court has questioned assumptions about federal regulatory power not just in the environmental context, but also in recent cases challenging Obamacare and COVID-19 vaccination requirements. And this year it struck down President Biden’s decision to cancel certain student loans using the same made-up “major questions doctrine” that it applied in West Virginia v. EPA.

Next term’s concerns

The Court has already set itself up to continue its campaign next term, which starts in October. Several of its new cases will have huge implications for federal agencies.

The main case we are watching is Loper Bright Enterprises v. Raimondo. In that case, a fishing company is challenging a fishery monitoring program supervised by the National Marine Fisheries Service (NMFS). The program requires some fishers to pay for monitors who accompany them on fishing trips to collect data that is critical to making sure fisheries do not collapse. The industry plaintiffs argue that the NMFS can’t require them to pay for observers. The plaintiffs lost in the lower courts because of the long-settled Chevron deference doctrine, which tells courts to defer to an agency’s reasonable interpretation of the federal law it administers when the law is ambiguous. Supported by all sorts of groups that dislike federal regulations, the fishing industry asked the Supreme Court to overturn that doctrine, and the Supreme Court agreed to take that issue up.

The Court is likely to seriously weaken the Chevron doctrine or even eliminate it. That will strike yet another blow against agencies like the EPA because the Chevron doctrine embodies the recognition that administrative agencies tasked with implementing complex, often scientific, statutes have insights and experience interpreting those statutes that courts lack. Eliminating the doctrine will shift more power towards the courts and diminish agencies’ ability to issue durable regulations in the public interest.

The Supreme Court’s interest in reshaping how our government works doesn’t end there. It has taken up another case, Securities and Exchange Commission v. Jarkesy, that asks the Court to address the so-called nondelegation doctrine. Supporters of that doctrine, which has been dead for almost 100 years, say that Congress can’t give administrative agencies, like the Securities and Exchange Commission or the EPA, significant regulatory authority. The Court has also taken up an attack on how Congress chose to fund the Consumer Financial Protection Bureau — part of a longstanding effort to limit Congress’s ability to create new federal agencies that are structured in ways that insulate them from partisan politics. And the Justices will hear a case that attempts to limit Article III standing — part of a longstanding effort to limit the ability of everyday people to sue in federal court.

Where I see hope

These trends are distressing, but there is good news as well. At this point in his term, President Biden has appointed more federal judges than any recent president. The appointments have significantly diversified the federal courts, especially the lower courts where most decisions are issued. Public opinion surveys tell us that people are increasingly aware of and concerned about the agenda and integrity of the current Supreme Court. And — perhaps most heartening — the public increasingly understands the role the Supreme Court plays in environmental protection and disagrees with the Court’s direction on the issue.

How Earthjustice Leads in this Legal Landscape

While cases like Sackett v. EPA concern us, we have the legal tools and expertise to successfully protect people and the planet. Here’s what we’re doing:

• We are choosing cases and arguments carefully to avoid facing the most hostile courts or creating bad precedent. As the largest public interest environmental law organization, we have a lot of influence over which battles the environmental movement picks.
• There’s more to the judiciary than the Supreme Court. Ninety-nine percent of federal cases are resolved in lower federal courts. And the Supreme Court has little control over state court systems, many of which are open to innovative and progressive legal theories. That’s one reason we currently have cases before 24 state court systems.
• We don’t just file suit in courts. We litigate in administrative venues like public utility commissions, which often decide where our power gets generated. That’s where we fight against fossil-fuel industry lawyers who want to delay the energy transition. We also deliver legal advice and guidance to lawmakers and regulators who need help setting the rules of the road for the clean energy transition – on everything from how new power projects get onto the grid to utility rates for customers with rooftop solar.
• Finally, we have proven that we can win in front of hostile courts. For example, we built an incredible record of success defending environmental protections against the Trump administration; Earthjustice won 85% of the cases we brought against that administration, winning 52 of 61 cases that had been decided as of late 2021. (We even won a landmark Clean Water Act case before the Supreme Court.) And the Biden administration has appointed more favorable judges to the federal bench since then.

The post Here’s What to Expect From the Supreme Court This Term appeared first on Earthjustice.

Earthjustice, which was still known as the Sierra Club Legal Defense Fund, helped to inspire this story two years earlier when, in 1988, we did what we do best: won a lawsuit. The victory prompted the U.S. Fish and Wildlife Service (FWS) to list the northern spotted owl, a species unique to the Pacific Northwest’s old growth forests, under the Endangered Species Act (ESA).

That victory also began a remarkable legal campaign, spanning many more Earthjustice lawsuits, that forced the U.S. Forest Service to recognize that its role is not to administer logging in our national forests on behalf of lumber companies but to manage those forests in the broader public interest. While the Forest Service remains a work in progress in this regard, it’s no exaggeration to say that our northern spotted owl advocacy completely transformed federal forest management in the Pacific Northwest.

Based on the success of our Pacific Northwest strategy, Earthjustice and our partners decided in the late 1990s to apply a similar strategy in California’s Sierra Nevada mountains — an 11.5 million acre region that encompasses 11 national forests. We started work with our partners by petitioning the FWS to list four species under the ESA, each of which inhabits an imperiled Sierra ecosystem: the mountain yellow-legged frog thrives in pristine high-elevation lakes and streams; the Yosemite toad calls alpine meadows home; and the Pacific fisher and California spotted owl nest and hunt in mid-elevation old forests.

We called the frog, the toad, the fisher, and the owl our “Sierra Species.” Either the Forest Service would embrace its mandate to protect these animals and their remaining habitat, or else we would ensure their protection through the backstop of the ESA, which is largely administered by the FWS. It took persistent, dogged advocacy by literally generations of attorneys, but after years of delay, defeat, and obstruction, Fish and Wildlife finally protected the Sierra Mountain yellow-legged frog in 2013, the Yosemite toad in 2014, and the southern Sierra Pacific fisher in 2020.

That left the California spotted owl. The FWS repeatedly attempted to avoid protecting the species, and we repeatedly challenged its action (and, at times, its inaction). The third time was the charm: in 2019, after seeing our opening brief, the agency folded and agreed to reconsider its position once again. And this time, the FWS finally agreed the owl warrants protection. Last month, it published a proposed rule that would split the California spotted owl into two “distinct population segments” and would list the “southern/coastal” segment as endangered and the “Sierra” segment as threatened.

This is a fabulous development, but we must remain vigilant. After Fish and Wildlife initially proposed protecting the Sierra Pacific fisher, it tried to backtrack and withdraw that rule; we had to sue to reinstate it. We’re also watching to make sure that the FWS doesn’t allow “incidental take” of owls caused by commercial logging.

The Forest Service is still in the process of putting together new forest management plans that will guide its decision-making in the Sierra for the next 15+ years.  Because of our persistence, those plans will be shaped in part by the need to protect the spotted owl and our three other Sierra Species.

The post Protecting the Sierra Species appeared first on Earthjustice.

On Oct. 3, the U.S. Supreme Court heard arguments in Sackett v. U.S. Environmental Protection Agency (EPA), a case that could decide the reach of the Clean Water Act (CWA). Many observers assumed that the court’s conservative justices would seize on the case to strike a blow against what they view as government overreach.

But at oral argument, some of those justices struggled to square simplistic industry arguments with science and common sense. As a former Supreme Court clerk and environmental lawyer, I’ve seen justices emerge from similar struggles with a more nuanced understanding of the realities of environmental regulation — and I have some hope that it might happen again here.

In the CWA, Congress broadly instructed the federal government to protect the “waters of the United States.” For decades, federal agencies in both Republican and Democratic administrations have interpreted that phrase to include wetlands that are closely intertwined with nearby surface waters.

The Supreme Court has addressed the issue itself, most recently in the 2006 case of Rapanos v. U.S. There, former Justice Anthony Kennedy wrote a controlling opinion that states that the CWA covers wetlands that have a “significant nexus” to surface waters. Lower courts and federal agencies built a stable regulatory framework on that opinion.

But industry groups remained frustrated. They would have preferred a far more restrictive approach championed by former Justice Antonin Scalia in a separate opinion that only attracted three other votes. Industry interests have been eager to relitigate Rapanos, hoping the newly constituted court will vote Justice Scalia’s minority opinion into law.

They found a cause célèbre in Michael and Chantell Sackett. Years ago, the couple purchased a small parcel of land near Idaho’s Priest Lake. The Army Corps of Engineers had told prior owners that the property contained wetlands covered by the CWA, but that they could develop the property if they got a permit.

As the owners of an excavation business, the Sacketts presumably knew they could get one. But they decided not to bother, and dumped 4,000 tons of gravel into their wetland instead. When a local resident complained to the EPA and the Corps, the agencies told the Sacketts that they had to undo the damage.

The Sacketts sued the EPA instead. They were represented by the Pacific Legal Foundation — a group that routinely attacks environmental protections — and were backed by dozens of polluting industries and conservative organizations that filed 28 amicus briefs in the court.

The Sacketts and their industry allies have asked the court to rule that the CWA only protects wetlands that are contiguous with and impossible to distinguish from adjacent waterways. Under their approach, a dike, a berm, a road or even a beaver dam could deprive a wetland of CWA protection. If summer heat seasonally dries out a patch of land between the wetland and the waterway — which is a common occurrence across the West — that too could end its legal protections.

The Sacketts’ sweeping argument exposes the broad ambitions of their backers. Their approach wouldn’t just eliminate protections for the wetlands on their Idaho lot — it would cut off protections for over 45 million acres of other wetlands too. If the court agrees with their legal position, oil and gas companies, mining companies and developers could pollute and fill those wetlands with impunity.

This is the most conservative court in modern history, and it is deeply skeptical of government regulation, as shown by opinions addressing things ranging from COVID-19 vaccination requirements to Clean Air Act regulations. And yet, at the Oct. 3 argument, many justices — including some conservatives — seemed reluctant to adopt the Sacketts’ position.

Justice Amy Coney Barrett recognized that the CWA expressly refers to wetlands, and that this poses “the biggest problem” for the Sacketts’ interpretation — which excludes basically all wetlands from the act. Chief Justice John Roberts questioned whether the Sacketts’ view that wetlands lose protection if they sometimes dry up seasonally was at odds with scientific reality, because this is “pretty common” for wetlands.

And Justice Brett Kavanaugh repeatedly observed that “seven straight administrations,” including the Trump administration, interpreted the CWA more broadly than the Sacketts. The reason for that consistency lies in a point Justice Ketanji Brown Jackson emphasized: Congress’ purpose in passing the CWA was clear — to ensure “the integrity of the nation’s waters” — and everyone agrees that wetlands filter pollutants, trap sediment, and store water to reduce flood risk.

The Sacketts’ effort to exclude nearly all wetlands from the CWA faces the problem that their narrow interpretation, as Justice Jackson put it, “does not relate in any way” to Congress’s protective objective.

Make no mistake: The justices — including several liberals — also fretted about the significant nexus test from Rapanos. They recognized that the test doesn’t lend itself to bright-line rules, and requires scientific judgment and site-specific inquiries. And they worried that landowners are not always able to determine immediately and for themselves whether they need permits before starting construction.

This tension reminded me of the court’s most recent CWA decision in County of Maui v. Hawaiʻi Wildlife Fund — a case that my employer, Earthjustice, litigated on behalf of local environmental groups. There, the court wrestled with a similar problem: whether the Clean Water Act’s prohibition on discharges to surface water applied to a sewage treatment plant that injected its effluent into a well very close to the ocean.

The Trump administration and industry allies argued that the court should exempt the plant, because it is not easy to draw a clean logical line between that treatment plant and, say, a leaky residential septic tank that trickles waste into the ocean. Many observers predicted that the court would throw the bathwater out with the baby in Maui County.

But it did not. Instead, Chief Justice Roberts and Justice Kavanaugh joined with the court’s then-four liberal members to hold that in determining what kinds of subsurface discharges the CWA covers, courts and agencies must consider each case and weigh many factors.

For instance: How far away is the discharge from surface water? How long does it take for the discharge to reach those waters? To those who sought a simpler, and narrower, test, the court apologized: “There are too many potentially relevant factors applicable to factually different cases for this Court now to use more specific language.”

It encouraged the EPA to issue regulations and guidance to clarify the matter — and it reminded the regulated community that the judiciary would be there to protect truly innocent parties from hefty fines or legal mousetraps.

After listening to the argument, I have some hope that we will see a similar result in Sackett. Having now grappled themselves with the scientific complexities and line-drawing challenges of how to decide what wetlands should be protected, Justice Roberts and Justice Kavanaugh — and perhaps others — might conclude again that the project of protecting water quality is not always amenable to bright-line legal tests.

As they did in Maui County, they might instead list a nonexclusive set of factors for courts and agencies to consider in determining whether a given wetland is covered by the CWA, and then repeat its commonsense reminder: “The object in a given scenario will be to advance, in a manner consistent with the statute’s language, the statutory purposes that Congress sought to achieve.”

That would be the right result, one that is faithful to the CWA and the ambitious goal Congress laid out: to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

Earthjustice filed an amicus brief in Sackett v. EPA on behalf of 17 Native tribes. Read more about Sackett v. EPA.

The post Justices’ Clean Water Act Queries Hint At Search For Balance appeared first on Earthjustice.

This is a big deal. The Inflation Reduction Act is an enormous opportunity to confront the climate crisis by making transformative investments in clean energy and the communities most impacted by pollution and the climate crisis. It gives us the tools we need to replace our dirty and unsustainable fossil fuel economy with a clean energy future that will improve health, secure justice, restore the planet, and generate new jobs in the process.

While there is much to celebrate, there is much to mourn as well: The IRA contains provisions that will inflict immediate harm and slow our long-term climate progress. The fossil fuel industry convinced their allies in Congress to include poisonous handouts and sweetheart deals that threaten to further entrench fossil fuels into our economy, expose frontline communities to even more pollution, and actually delay climate progress.

As an organization that uses the power of the law to advance justice for people and our planet, it is our responsibility to ensure both that we secure the positive potential of the IRA’s beneficial investments and that we prevent new fossil fuel subsidies from harming communities that have already suffered too much at the hands of polluting industries. This means ensuring that the federal and state governments implement IRA investments in an equitable and just way while fighting any effort to expand or prolong our use of fossil fuels. It also means vigorously opposing efforts to weaken bedrock environmental laws like the National Environmental Policy Act (NEPA) that protect communities.

That’s why, for Earthjustice, the work is just beginning. Here’s what we’re going to do:

• We’re going to level the playing field for renewables. The IRA provides transformative investments in clean energy, but it will take more than that to transform our economy. Fossil fuel dinosaurs have spent decades creating barriers to entry for renewables: taxes, rules, and sweetheart deals that protect them from real financial competition with the renewables industry. Why? Because when they meet on a level playing field, renewables win. Earthjustice and our partners will continue to attack these barriers in court and before state and federal energy regulators so that we can break the power of fossil industries and get communities the clean power they deserve.
• We’re going to fight for a just and equitable energy transition that leaves no community behind. The IRA commits $60 billion to support communities on the front lines of pollution and climate change. For too long, pollution and climate change have disproportionately impacted communities of color and low-income communities. These funds will help clean up Superfund sites, improve air monitoring capacity, reduce emissions at ports, and directly invest in community-led initiatives through Environmental and Climate Justice block grants. Earthjustice will help its partners secure this funding so that they can address longstanding environmental harms and make positive change in their communities.
• We’re going to fight like hell against handouts and tax credits for fossil fuel infrastructure — including offshore drilling giveaways. Earthjustice will redouble its efforts to support community partners that are in the crosshairs as fossil industries try to expand their footprint while they still can. The IRA holds development of offshore wind energy hostage to expanded onshore oil and gas leasing as well as offshore oil and gas leasing in the Gulf of Mexico and Alaska. Drilling for more oil won’t drive down gas prices, but it will increase our emissions and inflict further harm on communities — including Gulf communities that depend on clean offshore waters for their livelihood and way of life. Earthjustice has represented those communities to prove, time and again, that offshore drilling violates our environmental laws, and we won’t stop. Communities in the Gulf deserve a just transition to good-paying jobs and a strong economy, not more fossil fuel projects that will prolong pollution of their air and water.
• We’re going to speak truth to power about what it takes to truly end our fossil fuel addiction. We’re going to speak truth to power about what it takes to truly end our fossil fuel addiction. The IRA provides support for technologies — like carbon capture and blue hydrogen — that continue fossil fuel dependency and shift the focus from true climate solutions like renewables and electrification. Earthjustice will partner with those communities to challenge any proposal that threatens their future.
• We’re going to fight attempts to weaken bedrock environmental laws like NEPA. Senator Joe Manchin, Senator Schumer, and Speaker Pelosi have reportedly promised a “side deal” aimed at shortcutting permitting processes by watering down NEPA requirements to directly engage with the people and communities impacted by projects. While we need to build more clean energy infrastructure — fast — real permitting reform requires investments in outreach and engagement with communities, not shortcuts. We will urge congressional leaders to vote against any permitting side deal that undermines public engagement while advocating for real solutions that center community voices like the Environmental Justice for All Act.
• We’re going to demand that the Biden administration harness all the power of the federal government to protect community health and combat climate change. The investments in the IRA are transformative, but in order to reach our emissions reduction targets and protect overburdened communities, we need a whole-of-government approach. This requires President Biden to implement a suite of strong executive actions that will help us achieve greater emissions reductions and help those communities most impacted by our continued reliance on fossil fuels.

The investments in the Inflation Reduction Act give us the opportunity to do what the fossil fuels industry never did. We can build out the clean energy infrastructure of the future while also installing guardrails to protect the places and communities most impacted by development. We can work to ensure that the Biden administration implements the climate provisions of this new law in the most impactful, just way possible while fervently fighting every bad provision that endangers the lives, livelihoods, and health of frontline communities. For the sake of our future, we can’t afford to wait.

The post The Inflation Reduction Act is the Biggest Climate Investment in History. The Fight Doesn’t Stop Here. appeared first on Earthjustice.

Should we listen to Big Oil’s advice? Or do we finally say “no more”?

As we consider that question, we should remember that April 20 marks the anniversary of the 2010 BP Deepwater Horizon disaster. I was one of the staff members of the bipartisan commission that investigated the spill. What I learned still haunts me, and makes me very unwilling to trust the oil industry’s policy advice.

What we found as we investigated the BP spill is that the oil industry’s technological and economic accomplishments had generated hubris and greed that led it to downplay or even ignore the risks its operations posed to the people and ecosystems of the Gulf. Worse still, the industry promoted politicians and regulatory leaders who defunded and defanged the very agencies charged with questioning the industry’s assertions and policing its operations. Oil companies convinced us that we could trust them to follow “industry standards” (which they defined) and that this would be enough to ensure our safety.

At the very same time, however, the industry took steps to ensure that it would not be held responsible for dealing with problems if things did go wrong. Among other things, it successfully lobbied for laws that limit liability from deep-water operations. Why? Because insurance companies—which rely on their own independent risk assessments—would not sell insurance policies that could cover the true costs of a deepwater blowout. This highlights an oft-ignored fact about the BP spill.  We were lucky that that one of the industry giants owned the Macondo well; had that well belonged to any of the dozens of smaller and less wealthy companies that operate in the Gulf, taxpayers would have been left footing the entire response and recovery bill. (As it is, BP’s payments covered only a fraction of the true costs.)

Industry leaders admitted to me that they never imagined that a deepwater blowout could ever happen in the Gulf of Mexico. That’s why none of them—not Exxon, not Chevron, not Shell, not anyone—had thought in advance about how to stop a blowout like the one at Macondo. It took them nearly three months and 200 million gallons of spilled oil to figure it out.

This insensitivity to risk is not unique to oil companies. In fact, it’s a built-in feature of corporations: we created them so that investors can undertake risky enterprises without individually risking anything beyond their fixed investments. Put another way, corporations are fictional people created by law to take risks that no real person would ever accept.

This system works when the corporations are taking financial risks that their investors understand and accept. We do need to work to make sure investors are well-informed: we have laws that require corporations to provide accurate information in annual reports and disclosures. We know that a corporation’s profit motives would otherwise lead it to understate risks in search of cheaper capital.

Trouble shows up, however, when the corporation is creating not just financial risks for investors but real-world risks for a vulnerable and sometimes deliberately misinformed public. BP’s investors certainly suffered from Deepwater Horizon disaster, but the families of the 11 men who died on the rig suffered the most. The residents of the Gulf also experienced enormous impacts and many still experience health effects from the disaster. Ecosystems collapsed, and with them, communities that depended on those ecosystems. Taxpayers paid an enormous bill. Most Americans felt surprised: we had believed the oil industry when it told us that it was operating safely, and that the risks were negligible.

Today, as we approach the anniversary of the BP disaster, we’re facing risks that make a deepwater blowout seem almost trivial: runaway climate change and the geopolitical instability and ecological collapse already accompanying it. The oil companies got us into this mess by concealing and denying the risks of fossil fuel use, but some of our leaders seem willing to trust those companies again when they say they know how to get us out of it. We should be extraordinarily skeptical when the oil industry tells us that we can solve an energy crisis by further committing ourselves to a fossil-fuel based economy. The only thing we can truly trust this industry to do is fight to preserve its business model and secure profits for its shareholders. To do those things, it will disinform and delude anyone—including itself.

There are other solutions. Industry knows it, Congress knows it, and the White House knows it. In the US alone, we already have 95% of the renewable technologies we need to be emissions-free by 2035. We have a choice: we can build the reliable, secure, affordable grid we need to meet the climate crisis, or we can offer the oil barons more land and more leases. The oil barons got rich digging the hole we find ourselves in. We shouldn’t trust them when they say the way out is to dig faster.

The post Deepwater Horizon Oil Spill Anniversary Is a Grave Reminder of Why Not to Trust the Oil Industry appeared first on Earthjustice.

Environmental laws like the Clean Air Act, Clean Water Act, and Safe Drinking Water Act require the federal government to implement our rights to a stable climate, clean air and clean water. We need judges who understand this basic principle, and who we can rely on to enforce the law, respect the science, and keep the courthouse doors open to public interest litigants. And we need these judges now, because the climate crisis is existential and escalating fast, and because we’ve waited too long to address environmental injustice. We’re confident that Judge Ketanji Brown Jackson is such a judge, and that she will bring a much-needed perspective to one of our democracy’s most critical institutions.

Currently, our Supreme Court is dominated by six highly conservative justices who are going out of their way to take cases brought by plaintiffs who question the federal government’s authority to address environmental problems. What’s worse, these justices are deciding cases based on novel doctrines and have signaled that they are willing to disregard the court’s prior precedents as part of a deregulatory policy agenda.

Judge Jackson, by contrast, has a proven record of following settled law and prioritizing facts, not politics, when making decisions. When Earthjustice reviewed her record, what we found is that she digs into the science in the record before her and into the complexities of administrative law. She doesn’t always rule for environmental groups or public interest lawyers in environmental cases, but our clients always get a fair shake from her: She takes the time to understand the law, digs into the science enough to make sure that agencies are doing their job without going so far as to second-guess their expertise. And she recognizes the importance of public participation.

In part because environmental rights are not (or shouldn’t be) a partisan issue, we don’t have an easy litmus test to tell whether a judicial nominee will be “good for the environment.” But these are the questions—below—that we asked ourselves in evaluating Judge Jackson, and that the Biden administration should ask as it looks for lower court judges who will support a sane environmental and climate agenda. There’s also a bonus question “X factor” question that the administration should ask to separate potentially good judges from potentially extraordinary ones.

Does the candidate recognize that the government has a responsibility to protect the environment, public health, and public lands for all people?

What you do on your patch of land affects what I can do with mine, what you discharge into the air and the water affects my health, and your energy generation and ecosystem impacts all affect me. The federal government must make consistent national rules to regulate these things and enforce those rules evenhandedly, everywhere. A good judge isn’t hostile to industry. On the other hand, good judges believe that the Constitution gives Congress broad and deep authority to regulate industries in the public interest—and that polluting industries have a profit motive to challenge and undermine that authority. They also recognize that for government to work, Congress has to be able to delegate to the executive branch the complex and technical task of issuing enabling regulations. And when they try to understand what Congress was trying to achieve, good judges are willing to consider any evidence, not just evidence that supports their personal policy preferences.

Can the nominee tell the difference between science and politics?

Good science and careful factfinding beget good environmental policy. In fact, one of our most effective environmental laws — the National Environmental Policy Act (signed by Richard Nixon) — doesn’t actually require the government to protect the environment. Instead, it requires the government to consider the environmental impacts of decisions, and to make those decisions based on facts, science, and public input. Not politics. This is why so many of our environmental laws require federal regulators to build a record of the work they did in reaching at their decisions. Good judges know how to roll up their sleeves and review the agency’s work for factual and legal integrity, without yielding to the temptation to replace the agency’s policy judgments with their own.

Does the candidate understand that individuals need access to courts to hold government and industry accountable?

Strong environmental laws aren’t enough on their own. People need to be able to hold industry accountable for following those laws, and, when necessary, sue the government itself for failing to do its job. Polluting industries and lax regulators try to escape accountability by twisting justiciability doctrines (the standards that determine what kind of legal issues a court can decide) into bars on the courthouse doors. We need judges who recognize that access to the courts is a basic right no different than access to the ballot box.

So what about Judge Jackson?

We’ve examined Judge Jackson’s environmental and administrative law record carefully. What we found is that she’s not result-oriented; sometimes she sides with plaintiff groups and sometimes with the governmental agencies. In other words, she decides cases one at a time based on the specifics of each case. That’s a good thing, and we need more of it in our federal judiciary.

Here’s an example. In Watervale Marine Co. v. DHS, Judge Jackson upheld the Coast Guard’s authority to detain and impose non-financial conditions of release on ships found to have improperly disposed of oil waste in violation of a federal anti-pollution law. The U.S. Coast Guard detained four foreign container ships on suspicion of violating the Act to Prevent Pollution from Ships (APPS), a federal law intended “to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances.”

And in Government of Guam v. United States, where we also saw a good environmental outcome, Jackson allowed Guam to move forward with a lawsuit against the U.S. Navy, which had created a polluting landfill on the island that was contaminating a nearby river and was refusing to pay cleanup costs. Though the D.C. Circuit Court reversed her decision on this case, the U.S. Supreme Court ultimately unanimously agreed with her and allowed Guam to move forward with its suit.

Does the candidate have … the X Factor?

As I said, while Earthjustice believes that any good judge must display the three characteristics we describe above, the best have one more: they know how to influence the law far beyond the scope of their own individual decisions. Appellate judges who sit on panels need to be able to persuade colleagues through thoughtful behind-the-scenes reasoning and by building relationships across philosophical divides. District court judges should be able to write opinions that persuade appellate judges who do not generally share their point of view. And the best judges know how to play the long game by writing eloquent opinions that shift legal doctrine and provide a roadmap to a better future.

Does Judge Jackson have “it”? Time will tell. Lower court judges “grow into” their voice as a Justice over years, but we believe that Jackson’s record and professional experience give her an ideal start.

This blog was originally published in March 2021. It was updated in March 2022.

The post The Earth Needs Good Judges. Here’s What That Means. appeared first on Earthjustice.

More than ever before, we at Earthjustice are not only fighting in our courts, but forthem, too.

I won’t sugarcoat this. In this Supreme Court session, the conservative majority has made its deregulatory agenda obvious: It wants to limit the federal government’s power and authority to execute its mandates under the law. And, with six votes, the Court is doing so.

In the most recent example, the Court issued a ruling in January blocking OSHA’s vaccination or mask-and-test mandate. On the way, the Court told us that whenever a government agency acts in a way that may have “major” economic and political effects, judges should demand a “clear statement” from Congress that “unambiguously authoriz(es)” the agency’s action.

In simpler terms, the conservative bloc is saying that when agencies try to regulate in ways that will have big economic impact, judges should go back and read Congress’ laws more narrowly than they would otherwise. The Court calls this novel rule the “major questions doctrine.” It’s novel not only because it returns us to the pre-New Deal era where the Court exercised freestanding authority to second-guess laws with economic impacts, but also because it contradicts right-wing judges’ long-running demand that we focus on the “plain text” of our laws and nothing else.

Unfortunately, the Court seems poised to apply the major questions doctrine again in the blockbuster case of West Virginia v. Environmental Protection Agency. The case examines the Environmental Protection Agency’s (EPA) authority under the Clean Air Act to regulate carbon emissions from power plants. It was astonishing that the Court took the case at all; it involves an Obama-era regulation that has never and will never be enforced, meaning that nobody can claim to be affected by it. The Court seems to want to put an environmental exclamation point on the signal it sent in the OSHA ruling — again, federal agencies should not enact regulations that have “major” economic or political significance unless they can point to language in a law that specifically authorizes the action.

That’s bad enough when applied to the Clean Air Act. But the worse news is that virtually all environmental regulations have “major” economic impacts on industry. That’s the point: the alternative is to let industries impose “major” environmental impacts on us. So the Court’s new approach will create havoc in our world.

The Court is insisting now that the Congress of 1970 had to be very specific about which particular air pollution problems it wanted the EPA to tackle today, in 2022, and how. But members of Congress aren’t scientists, and they don’t legislate that way. Instead, they empower agencies to create flexible, science-based regulatory programs that can take into account changing information, new science, more data, and developing technology. The Congress of 1970 couldn’t possibly have foreseen what information, science, technology, and urgency we’d confront in 2022 — and didn’t try. Instead, it used broad language and gave agencies sweeping authority. Narrowing that language now — 50 years later — effectively allows an unelected right-wing court to overturn decisions by a bipartisan Congress. This is not good.

Argument in the Clean Power Plan case happened a couple of weeks ago, and the signals confirmed our fear that the court is on an anti-regulation campaign. (You can hear some of our commentary on it on Volts podcast: Jack Lienke & Kirti Datla on the ridiculous (but extremely important) EPA case before the Supreme Court and American Constitution Society Episode 38: Climate Change Goes to Court.) They also reminded us that Judge Ketanji Brown Jackson will need to be as aware of the perils of a politicized judiciary as her former boss Justice Breyer. She and future Justices instead need to be driven by facts and science, not political ideology, power hunger or fringe theory. They need to restore credibility and legitimacy to our nation’s highest court.

What can you do? Tell everyone in your orbit about this case, and how much courts matter for the environment. No court more than the Supreme Court.

The post A Hostile Supreme Court Threatens Environmental Progress appeared first on Earthjustice.

There, I was a knife fighter. Here, I’m a knife fighter with a mission.

At DOJ, your clients are government agencies. You don’t get to pick and choose which of their decisions you defend. Some you agree with, some you don’t. You have to tell yourself you’re part of a larger enterprise of environmental protection that requires a strong government to enforce those laws.

At Earthjustice, our clients are real people. We have a smaller stick, but we choose where we swing it — and I want to win every single case we handle at Earthjustice.

What are some common misunderstandings about environmental litigation?

It’s not like “Law & Order.” We rarely argue before juries or have dramatic moments where someone changes their testimony on the stand. Environmental law is super nerdy. You have to read a lot of dense regulations and understand the science. The magic comes when you transform that technical stuff into a case. When you’re litigating, it’s never about the minutiae. It’s always about the story. Every decision-maker is moved by wanting to do the right thing. We write the story with the judge as the hero.

How has the public’s perception of environmental law shifted over your career?

Fifty years ago, most people perceived environmental law as protecting beautiful wild places or preventing pollution in the abstract. Nobody connected it to people being harmed.

Now, environmental protection is much more people-centric. It’s increasingly apparent to everyone that our way of living is unsustainable at a planetary and a social level. Most of the costs have been put on the backs of a subset of our population: historically disenfranchised races; people without money; people of the global south.

While the good times have been rolling for some, they haven’t been for everyone, and the planet is giving all of us a wakeup call. The practice hasn’t fundamentally changed, but the aims and implications of our lawsuits are much bigger.

Do you believe that judges appreciate the prevalence of environmental justice issues?

Yes. Judges are human beings. They read the newspaper. Their kids go to school. Good judges recognize that our society is set up in a way that allows and encourages us to put the burden on people who are not able to immediately defend themselves.

Most judges are looking to do the right thing, and we try to show it to them. At the end of a brief, you want a judge to say, “Sounds great. Where do I sign?”

What’s an example of how Earthjustice is using the law in a creative way?

Taking on utility companies is one of the most audacious strategies the environmental community ever came up with. We realized that intervening in the state proceedings where regulators decide how much utilities can charge ratepayers, and what for, could be an incredibly powerful way to drive environmental change. It’s a way for regular people to hold some of the biggest, most polluting industries accountable.

When we first started doing those cases, the utility companies were totally confused. No one had ever pushed back on them in these proceedings before. But we keep winning by making the same basic argument: The law says you have to regulate these companies in the public interest. Let’s make sure you know what that is.

What environmental law do you wish was on the books?

So, we have the National Environmental Policy Act (NEPA). It says the government must analyze and consider the environmental impacts of a project. Earthjustice uses NEPA all the time to challenge permits and approvals for industry projects that would harm the environment. The addendum that Congress hasn’t written, and would make all the difference, is the government’s actions must leave the environment in better condition than it was before. Right now, agencies only need to consider other alternatives. Imagine if the law said they had to choose the best one for the environment.

Fighting the climate crisis can get pretty bleak. What keeps you motivated?

One is the energy and commitment of young climate activists, like Varshini Prakash and Greta Thunberg. I feel so thankful that they’re here. They give me hope.

The other thing is nature itself. No matter how long I forget to water the garden, or how cold the winter was, the sprouts keep trying to come up and the leaves keep trying to come back. Despite all that’s happened to life over the millennia — like an asteroid — the Earth keeps generating beauty and marvels, and will continue to. They may not be the ones I enjoyed as a kid, and the world may be a darker place for a while, but it’ll come back.

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