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Environmental lawyers are ready to take on Trump's deregulation of energy

Environmental groups in the United States say they're hiring lawyers and getting ready for a legal battle with the Trump administration, which is attempting to bypass federal regulations regarding oil, gas, and coal development.

The preparations are a test of the Trump administration’s strategy, which has been relying on executive orders and emergency powers to cut down what they see as obstacles to an increase in fossil fuel energy.

Trump has issued an executive directive directing agencies that they must sunset all existing energy regulations by the end of next year. In a separate memo, he said agencies could repeal certain regulations, without consulting the public.

Federal officials also informed companies via email that they could seek exemptions from clean air regulations. They exempted several companies from mercury and toxic air limits. A controversial oil pipeline tunnel was fast-tracked in the Great Lakes.

Attorneys and policy experts have said that these actions are a test of existing law. This includes provisions of the Administrative Procedure Act of 1947, which requires agencies to publish notices of final and proposed regulations, and to allow public comment.

In an interview, Dan Goldbeck said, "They are really kicking it up a notch now." Goldbeck is the director of regulatory policies at the conservative think-tank American Action Forum. "They're trying to push a few of these legal doctrines to see if it can be implemented into a new policy frame."

Earthjustice, an environmental group, said that it was hiring lawyers to prepare for a legal challenge against some of Trump's actions. It said that the organization currently has 10 positions open for lawyers and plans to add to its stable of 200 lawyers this year.

Earthjustice, along with other groups, say that they are ready to file a lawsuit as soon as Trump's agencies implement his directives. This includes his order to sunset federal energy regulations.

Sambhav Sankar is Earthjustice's senior vice president of programs. He said that the proposal by President Trump was almost comically illegal. "If any federal agency tries to do this, we will see them in court."

Nevertheless, the groups say that it is important to wait until the administration acts on Trump's orders.

David Bookbinder is the director of law, policy and environmental integrity at the Environmental Integrity Project.

The White House has not responded to a question about possible legal challenges by environmental groups.

Bookbinder, of EIP, said that the Interior and Commerce Departments gave environmental lawyers a target last week when they proposed a new rule allowing agencies to approve projects that destroy the habitats for endangered species.

He said, "This is in a sense what we've been looking forward to - not the big announcements from the White House."

Zach Pilchen, senior attorney at Holland & Knight and former member of the Trump and Biden Administrations, says that it may be more difficult to challenge the exemptions from mercury and toxic air pollutants for coal-fired plants.

Trump relied upon a provision in the Clean Air Act, passed by Congress back in 1990. This allows the president to exempt some sources from the law for reasons of national security or if mitigation technology isn't available.

Pilchen said, "This is new territory." "That provision has not been tested, and it may be difficult to challenge in court."

He stated that the Clean Air Act contains a judicial-review provision governing lawsuits involving actions taken by the Environmental Protection Agency Administrator, but does not mention specific actions taken by the President.

Earthjustice's Sankar stated that his organization anticipates having to challenge the actions of the administration repeatedly in the coming years. He cited the government's refusal to comply with a U.S. Supreme Court ruling that ordered it to facilitate the return of a Salvadoran deported by mistake and currently held in a notorious El Salvador prison.

Sankar said that, "normally, in impact litigation, after you win, the government will change its behavior in similar cases in order to conform to the precedent." He added that he didn't expect the administration to continue to follow precedent. (Reporting from Nichola Groom, Los Angeles; Valerie Volcovici, Washington; Editing by Marguerita Choy)

(source: Reuters)