Environmental groups know President Joe Biden’s climate agenda is under attack, and they’re sending their lawyers to strategize how to defend it.
Attorneys for the Sierra Club and the Center for Biological Diversity, among others, are convening at Earthjustice’s Washington, D.C., offices this week to coordinate against an onslaught of lawsuits challenging recent Biden administration rules aimed at promoting the clean energy transition.
“We’re going to defend this important regulatory agenda that Biden has delivered over the last several months against industry attacks,” Earthjustice’s Sambhav Sankar told NOTUS. The group has more than 200 attorneys and more than 500 additional staffers working to protect environmental regulations — a 40% increase in size that occurred mostly over the course of the Trump administration.
Sankar would not provide details about specific cases or strategies beyond efforts to ensure groups aren’t duplicating work, and their intentions to identify the best suited attorneys to lead various cases.
It’s a busy time to be an environmental attorney in D.C. The Biden administration finalized a record-breaking number of rules over the last several months, many of them structured to address climate change.
The sheer number of regulations has meant an unusually high number of corresponding legal challenges. And recent Supreme Court rulings have tightened restrictions on federal agencies, making it easier for states and companies to successfully challenge progressive environmental regulations — and harder for environmental groups to help defend them.
“We just live in a time where virtually every one of those rules is going to be challenged by one party or another,” said Jason Rylander, an attorney with the Center for Biological Diversity Action Fund.
Industry groups and coalitions of conservative state attorneys general are challenging everything from a permitting reform rule and a Securities and Exchange Commission rule requiring companies to make climate disclosures to EPA rules covering power plant emissions, car and truck pollution, and methane emissions.
Interest groups and attorneys on both sides of the aisle told NOTUS that they expect to see more lawsuits against other recent regulations, including the Federal Energy Regulatory Commission’s recent order on transmission planning.
Last year’s Supreme Court ruling endorsing the major questions doctrine, which assumes that agencies do not have the authority to answer “major questions” of economic or political importance without Congress’ explicit approval, has strengthened many regulatory challenges. The Supreme Court is expected to further limit agency authority this term.
“Things like the increased use of the major questions doctrine has already had a really chilling effect on areas like climate,” said Jim Murphy, the director of legal advocacy for the National Wildlife Federation. “One of the hardest things honestly to deal with is just how rapidly the judiciary is shifting. A lot of settled law is being upended.”
Conservative groups are already eying the Biden administration’s latest regulations, arguing that its focus on climate change has pushed the agencies beyond the boundaries of their authority, according to Daren Bakst, the director of the Competitive Enterprise Institute’s Center for Energy and Environment and a former Heritage Foundation senior fellow.
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The Biden administration has been slow to release new rules, jamming them in the last year of the president’s term. Thomas Lorenzen, an environmental attorney with Crowell & Moring LLP who is representing the Edison Electric Institute in its challenge of the Biden administration’s new power plant rules, said that it’s because the federal government knows the legal landscape is shifting.
“They are taking more time with them, putting more analysis into them, and exploring different legal theories,” he said.
A coalition of Democratic state attorneys general have been part of that more careful crafting process, and they are defending the administration against conservative state attorneys general’s cases.
“It’s particularly important that when there are states challenging a rule, for there to be a counternarrative about how beneficial the protections are,” said Jessica Bell, the energy director at NYU law school’s State Energy and Environmental Impact Center. “AGs often carry the weight of defending the federal action. It’s a lot, and it’s substantial.”
At Earthjustice, a team of attorneys is working explicitly to plan how to navigate the major questions doctrine, the expected limit on Chevron deference and the Supreme Court’s general skepticism toward agency authority. They’ve been in close contact with the agencies as they crafted regulations.
“You don’t prepare overnight for this, you prepare over years,” Sankar said. “We know what’s coming.”
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Anna Kramer is a reporter at NOTUS.