A change in presidential administrations leaves hundreds of environmental lawsuits filed against the Trump administration in flux.
What the new administration will do with those lawsuits, however, has lawyers on all sides of the issues guessing. While the Biden administration most often will probably side with the environmental lobby, the experts say it probably can’t just march into court and drop cases on ideological grounds.
It’s particularly difficult in cases where ag groups have become a party.
How the existing suits are settled is of interest, but we are also concerned about the suits that have yet to be filed.
We are wary that the Biden administration might return to a legal tactic popular with Barack Obama — sue and settle.
The scheme was simple. A special interest — environmentalists, for example — would file a lawsuit against a federal agency’s actions or its regulations. Because these were regulations or actions that the administration didn’t support, lawyers for the government were told not to take the case to trial.
During the settlement talks, the special interests spelled out changes in the agencies’ regulations. This in essence allowed the agencies to write new regulations without having to go through the trouble of seeking public comment.
It was a cozy arrangement with favored allies. But sweetheart litigation brought by environmental groups to expand an agency’s regulatory activities often ran against the wishes of Congress and the public.
Senate Republicans hauled Obama administration officials to Capitol Hill to blast the policy. Even the courts didn’t always go along with the scheme.
A decision in the 9th U.S. Circuit Court of Appeals struck down a consent decree in such a “sue and settle” case. Under the deal between the U.S. Forest Service and environmentalists, new regulations were written in private to cover how the agency will monitor and manage 400 species considered to be “ecologically crucial” to forest health.
The court ruled that while the government can tell a party to the lawsuit that it will change the regulations, that party cannot dictate the specifics of the changes.
Nonetheless, the practice didn’t come to an end until Donald Trump took office and his agency heads defended their regulatory decisions.
Agriculture saw much needed and favorable changes in policy and regulation during Trump’s term. Without doubt, the Biden administration will attempt to turn the clock back to 2016.
These attempts must be transparent, not an end run around the process and the people.
And, it will be more important than ever for ag interests to intervene in these cases where possible so that they have a seat at the table.