Connecticut is ready for battle. But no guns, no grenades, no things that go boom here. Just a platoon of lawyers armed with the Clean Air and Water acts and a lot of guidance from the U.S. Supreme Court.
The goal is just that – clean air and water – but also vigilance in combating climate change in the face of Trump administration actions to roll back, alter or even eliminate existing environmental regulations and programs.
California, the longstanding face of cutting-edge environmental policy, has hired Obama Attorney General Eric Holder to spearhead its anti-Trump environmental action. Considerably smaller Connecticut is running its offense with a dozen or so attorneys in Attorney General George Jepsen’s office.
The state could turn out to be one of the most uniquely qualified to challenge the Trump administration on environmental policy.
“Connecticut fights way above its weight in a number of the areas on the national scene,” Jepsen said. “Environmental issues is one of those areas.”
Especially on matters related to air quality. That’s because, after California, Connecticut has some of the worst air in the country – and it’s not its own fault – more on that later. Policies threatened by Trump during the campaign and now beginning to take shape could make it even worse.
Jepsen said even before Donald Trump was sworn in, planning for legal pushback against anticipated environmental moves began with meetings among attorneys general nationwide and interested state and national groups, as well as the state Department of Energy and Environmental Protection.
As anticipated actions have become realities, the state has joined new legal efforts, adding them to actions still pending from the Obama administration. The new steps include a multi-state legal effort to keep the Obama administration’s landmark Clean Power Plan alive.
That plan would cut emissions from existing power plants by about one-third from 2005 levels by 2030. But the U.S. Supreme Court has put it on hold while the U.S. Court of Appeals for the District of Columbia considers a case brought by a number of states opposed to it.
On March 28 Trump signed a sweeping executive order aimed at rescinding – or at least neutering – the Clean Power Plan as well as many other Obama-era environmental and climate change initiatives. The Trump Environmental Protection Agency wants the court to suspend the case while EPA reviews it – a move critics say would stall it, potentially for years. Connecticut and 16 other states and several cities filed briefs arguing the court should continue the case, which has been fully briefed and argued and in which a ruling is expected soon.
Connecticut also has joined California to fight Trump action taken in March to review fuel economy standards for cars and light trucks set by the Obama administration. The state also has been working with California to tighten emissions standards for medium and heavy-duty trucks.
To help support litigation in these and other efforts, Connecticut has earmarked about $700,000 from the state’s $14.8 million portion of the Volkswagen emissions fraud settlement to pay for certain activities, such as outside expert analyses the state can’t do on its own.
Jepsen and others in his office will not say specifically what the thrust of any future litigation might be. First they say, they wouldn’t want to give away strategy. But second, it’s a bit too early to tell.
“Until concrete specific action is taken, we’re not going to know exactly what the basis will be for us to respond. I expect I’ll be very busy for the next three years and nine-plus months and hopefully not beyond,” said Jepsen, who is not shy about his disdain for Trump policies, though he said he would not reflexively oppose everything the Trump administration does.
“If we file frivolous lawsuits and they get dismissed, we’re handing the Trump administration a cheap, easy victory and they will exploit that,” he said. “We have to make sure if we do intervene legally … that we believe that we’re likely to prevail.”
The ammunition for legal action often comes from the Clean Air and Clean Water acts themselves, past government actions and a few major U.S. Supreme Court decisions, one of which came in a Connecticut case.
The legal backbone
The acts themselves have a citizen-suit provision, which allows states, groups and individuals to bring legal actions if they feel the mandates in the acts aren’t being met by the federal government.
“In times like these when the federal government seeks to step back, the courts become increasingly critical and important,” said Roger Reynolds, legal director at Connecticut Fund for the Environment, who formerly worked for the Connecticut attorney general’s office. He said the citizen provision is responsible for much of the progress made under the Clean Air and Clean Water Acts since they came into existence in the early 1970s.
The Trump administration has argued that many environmental regulatory functions belong to the states, not the federal government. The EPA budget blueprint released in February seemed to confirm that view. It slashed EPA spending by one-third, telling states they could pick up the slack, but cutting their program grants by 44 percent.
Reynolds said the budget constituted a fundamental change in how the federal government has protected interstate environmental resources for the last 46 years. “I think stepping back from this will lead to dirtier air, more greenhouse gases, polluted water and lingering toxic sites,” he said. “While one could say leave it up to the states – they really don’t have the resources or the jurisdiction to do this adequately.”
The issue of jurisdiction is key. Several Supreme Court cases have stated that the jurisdiction for clean air and water in the U.S. belongs to the federal government. That gives Connecticut and other states a wide legal avenue to fight Trump policies that back off certain environmental protections.
Legal experts point first to Massachusetts v. EPA – a landmark decision in 2007 that said greenhouse gases are a pollutant, and therefore the EPA can regulate them under the Clean Air Act – something the George W. Bush administration had fought.
The Obama administration provided the legal impetus for EPA regulation of greenhouse gases with something called the endangerment finding. It basically said those gases endangered public health and safety.
“In light of the endangerment finding – you have a mandatory duty to regulate carbon from every source that causes or contributes to it,” said Patrick Parenteau, a professor in Vermont School of Law’s Institute for Energy and the Environment. He called the endangerment finding “the keystone,” a view shared by legal experts. “(EPA Administrator Scott) Pruitt may think he has the authority to simply erase the carbon rule,” Parenteau said. “He doesn’t; he doesn’t. Because of Massachusetts versus EPA, because of the endangerment finding and because of two other Supreme Court findings.”
Those other two essentially provided additional affirmation that the EPA must be the agency to regulate greenhouse gases – not states. One of those rulings is American Electric Power v. Connecticut in 2011.
It’s notable that Trump administration actions so far have not included rolling back the endangerment finding. A report in the New York Times said Pruitt didn’t think an effort to do so would succeed.
Legal experts agree it would be difficult, and also say its continued existence makes wholesale reversal of the Clean Power Plan unlikely. And it may help stave off a number of the other actions in Trump’s March 28 executive order.
Aside from the Clean Power Plan review, the president’s executive order also sets into motion a review of carbon emission standards for new power plants, seeks to roll back to lower Bush administration levels the dollar value placed on carbon emissions throughout society – known as the social cost of carbon, and eliminate policy requiring federal agencies to consider climate change in major actions they take.
Most of these actions and others would require long rulemaking processes that could easily span years, not to mention likely protracted court fights. But legal experts and others worry about environmental damage if rules remain suspended for the duration. More ominous to environmental advocates may be the prospect that the Trump administration simply would not enforce existing regulations or would use the budget process – as it seems to be signaling already – to essentially starve policy implementation and oversight.
“They’re going to try to de-fund it, demoralize it, disorganize it, defeat it. That’s what they’re going to do,” Parenteau said. “They’re going to deconstruct the regulatory systems and … their very first, highest priority is destroy EPA.
“If Congress goes along with Trump’s budget – well that’s the end of the story: 3,000 staff fired and a budget that’s back to the 1970s. You can sue EPA all you want. You can’t get blood out of a turnip.”
Legal experts point out another problem if the administration opts for a non-enforcement, non-funding strategy.
“Enforcement carries with it discretion, and so it’s almost impossible to bring a lawsuit against anyone for failure to enforce,” said John Pendergrass, vice president for programs and publications at the Environmental Law Institute. The institute has published a series of 14 fact sheets that explore anticipated Trump administration actions and strategies on many environmental topics and existing laws and regulations. The fact sheets offer multiple scenarios and potential ways to fight them.
For instance in the case of de-funding, a court can’t order an appropriation, Pendergrass said. “But it can have an order that the agency is required to do something,” he said. “The Department of Justice is not going to be particularly interested in saying, ‘Well we’re not going to comply with the court order.’ That does lead to pressure on Congress to come up with the money to comply.”
On the other hand, most agree that getting Congress to do what the EPA or Trump won’t do is an equally daunting option.
Pendergrass offers this advice in the face of those low odds: States need to participate in the regulatory process and get all their comments and arguments into the record. “That record is what the agency has to make its decision on and gives you the basis for what your challenges are,” he said.
Connecticut is well-acquainted with that process, using it for years to try to get EPA to deal with the state’s dirty air. The state hasn’t had much luck so far, and it’s unlikely to fare any better under Trump.
The fight for clean air
Connecticut is in exactly the worst place for ground-level ozone, a major component of smog, formed when emissions like nitrogen oxide (NOx) and volatile organic compounds (VOCs) – which come from cars, power plants, industrial facilities and other sources – essentially cook in the hot summer sun.
But Connecticut’s ozone problem mostly blows in from the Midwest and up the I-95 corridor from the south. “Because of our location and the convergence of those two major transport sources, we’re really the poster child for interstate air pollution,” said Paul Farrell, assistant director of air planning at DEEP.
Parts of the state don’t even meet the 1997 ozone standard of 84 parts per billion (ppb), let alone the 2008 standard of 75 ppb or the 2015 one of 70 ppb, which the Trump administration has said it now wants to re-examine.
The administration already has gotten the U.S. Court of Appeals for the District of Columbia to delay scheduled April oral arguments by those fighting the standard – including some who say it’s too strict, and others who say it’s not strict enough.
Connecticut for years has been fighting to get the federal government to force upwind states to clean up pollution from their power plants – particularly those that use coal.
In 2013 Connecticut and several other states petitioned the EPA to add nine midwestern and southern states to the existing 12-state “ozone transport region.” The region – in the Northeast and mid-Atlantic including Connecticut – is subject to stricter emissions controls to keep one state’s pollution out of another state’s air.
In January, just days before President Obama’s term ended, that administration said no to the request and set a public hearing date for the Trump administration. DEEP Commissioner Rob Klee testified and Gov. Dannel Malloy sent a letter making the same argument they have for years: That Connecticut can’t meet its federally mandated ozone levels if the EPA doesn’t regulate emissions in upwind states.
Whether the request falls victim to the Trump war on regulations or support for coal is unknown, as is whether the endangerment finding will become a vehicle for contesting results in court.
In the meantime, the Connecticut attorney general’s office has other tactics. The AG’s office has filed a notice with the EPA of an intent to sue in the case of a specific coal-burning power plant in Pennsylvania – Brunner Island – over its emissions – possibly signaling a backup tactic if other efforts fail, though the office won’t confirm that or say exactly who it would sue – the plant, the state, the EPA.
The office along with DEEP also is expected to keep a careful eye on something called the “good neighbor” provision of the Clean Air Act, which requires all states to show they are not contributing to other states’ pollution. It has gone notoriously unenforced.
The broad strategy Jepsen and company probably will employ is to examine environmental rules, changes and rollbacks of rules as well as other actions taken by the Trump administration and the Pruitt EPA for ways to hold the federal government accountable. “Much of what you have seen and will likely see is states working together to advance and assert the principle that these issues need to be dealt with on a federal level,” said Perry Zinn Rowthorn, deputy attorney general.
Jepsen said the kind of battle he’s gearing up for in many respects is no different than how Republican attorneys general, including Oklahoma’s at the time – Scott Pruitt – fought the Obama administration. “The shoe’s back on the other foot now,” he said.
“But as a predictive matter, if the first 70-odd days are a harbinger of things to come, Democratic AGs are going to be very, very busy,” he said. “It’s at once horrific in the sense that I profoundly disagree with a whole range of policies that are unfolding with the Trump administration with the Clean Power Plan … but it’s also fascinating speaking from an existential standpoint. It’s fascinating as an AG to be kind of ground zero for what’s going on.”