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Strategies Emerge In 24 State Lawsuits Against Trump Administration

  

California is now part of 24 different lawsuits against the Trump administration. State Attorney General Xavier Becerra filed the most recent suit Tuesday against the U.S. Department of the Interior.

The lawsuit reveals a familiar playbook for both the administration and states suing it.

It argues that the Trump administration has illegally suspended a rule by the Obama administration, which would have created new penalties for leaks of the climate change pollutant methane during natural gas drilling on federal land. The rule took effect four days before President Donald Trump took office.

States, including California, say the agency does not have authority to simply stop enforcing a rule already on its books. Under the Administrative Procedure Act, a 1946 law guiding how the executive branch regulates companies and implements laws, federal agencies generally must follow a lengthy process to change rules, including holding public hearings and accepting comment.

“If the rule is legally in effect, they have to go through the same process to put it out of the effect,” says William Funk, a law professor at Lewis and Clark Law School, who has written the textbook on administrative procedure. “Just like Congress, if it makes a law, has to pass a new law in order to take that law out of effect.”

Almost every lawsuit filed by California—mostly in tandem with other states—alleges some type of Administrative Procedure Act violation. Often the suits accuse the administration of “arbitrarily” and “capriciously” nullifying a rule.

While those claims focus on rules' substance, many of the lawsuits brought by California, including the most recent, also argue that the administration is ignoring the required procedure. The state has already won two cases in district court against the Department of the Interior, including on the same issue of methane leakage as Tuesday’s court filing. The other lawsuit involved the price fossil fuel companies must pay the government for drilling on public land.

In both cases, the rules in question were created by the Obama administration and took effect just before Trump took office. California has also filed at least five other lawsuits challenging that federal agencies have improperly curtailed regulations created and finalized by the Obama administration, which had not yet taken effect.

Funk says those actions are typical for new administrations, although they reside in a legal gray area.

“It’s been the practice since at least Ronald Reagan to suspend rules that were not yet in effect,” Funk says. “There is some question about whether it’s still a rule that needs a new rule to repeal it—that’s sort of an outstanding question.”


California lawsuits about suspended rules already in effect without the public rulemaking procedure

Waste Prevention Rule: This Department of Interior rule requires new measures to prevent methane leakage by natural gas drilling companies on federal land, and for them to pay royalties for the methane they leak. It took effect January 17, four days before President Trump took office.

California and New Mexico filed their first lawsuit in July, after the Bureau of Land Management published a notice that it was suspending the rule indefinitely. A district judge ruled in the states’ favor in October.

Waste Prevention Rule Redux: The next day, the Bureau of Land Management issued a proposal to roll back the rule—as required by the Administrative Procedure Act—and finalized it this month.

California and New Mexico’s new lawsuit argues the agency arbitrarily suspended the rule with only a perfunctory process.

Valuation Rule, Two Lawsuits: The Department of Interior rule generally increases how much fossil fuel companies must pay for what they drill and extract on federal land. It went into effect on January 1, 2017.

Both the initial case, the judge’s ruling in that case, the subsequent agency action, and California’s second lawsuit follow the same pattern as the two Waste Prevention Rule lawsuits.

Birth Control: The Trump administration issued rules in October that expand the number of employers that can stop offering health care plans with contraceptive or birth control coverage, under religious exemptions. The administration declared it had good cause to issue “interim final rules,” meaning they took effect immediately, foregoing the lengthier, public rulemaking process generally required by the Administrative Procedure Act.

The California lawsuit argues the substantial change requires the full process.

Federal Coal Leasing: The lawsuit primarily argues that the federal government cannot enter into new leases with coal companies under existing environmental laws. One claim also states that restarting the leasing program, which former Department of Interior Secretary Sally Jewell suspended, requires a rulemaking.

Lawsuits about suspension of rules that had not yet taken effect

Federal Highway Administration, Greenhouse Gas Rules

Department of Energy, Energy Efficiency Standards (Two Lawsuits)

Department of Education, Gainful Employment Rule

National Highway Traffic Safety Administration, Smog Standards

Ben Bradford

State Government Reporter

As the State Government Reporter, Ben covers California politics, policy and the interaction between the two. He previously reported on local and state politics, business, energy, and environment for WFAE in Charlotte, North Carolina.  Read Full Bio 

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