According to environmentalists, the U.S. has entered a grim, brave new world. “The American people’s ability to access justice through the courts is under attack,” begins a new report from Earthjustice. In the report, the environmental group takes a look at the first year of the Trump administration and the Republican Congress, finding what it claims is a pattern of restricted access to the courts. Oddly enough given the authors of the report, many of the areas it cites have little or nothing to do with environmental law. In addition, despite the claims that Trump’s election led to these changes, few of them were proposed or pushed for by the president and many of the changes proposed by members of Congress were never enacted.
“Since Trump took office, members of Congress have introduced more than 50 proposals that would restrict people’s access to the courts, allowing government and corporate action to go unchecked,” writes Patrick Simms, a leading environmental attorney and Earthjustice’s vice president of litigation.
It is difficult to quantify “access to courts.” In addition, the distinction between measures introduced by members of Congress and those actually enacted shows that the harms Earthjustice predicts have not come to pass. In fact, almost all of those listed in the report were not enacted.
At the heart of the report are differing understandings of the proper role of courts in determining environmental policy. For Earthjustice and its partners, the inability to bring cases to court directly equates to a lack of access to justice. The courts also serve as a means of forcing action when legislative bodies are deemed to be failing to act.
In its report, Earthjustice explains that the courts allow citizens “to go to court to uphold a wide array of rights.” They imply that these cases allow people to sue for particular legislative outcomes that they see as under appreciated.
“[Judicial review] allows the public to hold the government accountable for abuse of power or failing to create or enforce regulations that put laws into effect,” the report states. “Through judicial review by the courts, members of the public can contest the legality of measures passed by Congress (or state legislatures) or challenge agency actions.”
However, Earthjustice in this report favors the use of lawsuits to force executive agencies and the government to enact legislation. This approach has flaws of its own, primarily that it does not involve the input of the industries being regulated and is also relatively unaccountable to outside review.
Many industry figures and members of the Trump administration, see these lawsuits as attempts by radical environmentalists to force the courts to legislate from the bench.
As Environmental Protection Agency (EPA) administrator, Scott Pruitt made ending “sue and settle” a key element of the start of his tenure, with the goal of reducing the number of burdensome regulations imposed without any electoral oversight. To do so, he advised the EPA’s attorneys not to move to immediately settle cases against environmental polluters, a move that he said would “increase transparency, improve public engagement, and provide accountability to the American public.”
Earthjustice sees that decision differently.
“Administrator Pruitt instructed EPA staff not to proceed expeditiously to settle cases where the agency had missed mandatory legal deadlines,” the report states. “The directive also prohibits staff from reaching agreement with public interest plaintiffs on the payment of attorneys’ fees and aims to deter people, communities, and organizations from taking the agency to court when it is not complying with the law.”
Even so, Earthjustice is forced to admit that environmentalists have been remarkably successful in their attempts to use the courts to stymie development projects. Across the country, protests against pipelines have used the courts to delay construction for months. The Dakota Access Pipeline (DAPL), which was only completed after months of protests in 2017, is even now the center of a second series of lawsuits alleging that the permitting process was incomplete.
For various industries which have earned the ire of environmentalists, the threat of lawsuits increases the projected costs of infrastructure projects. The DAPL protests, which ran concurrently with legal actions to permanently halt construction, cost Energy Transfer Partners, the company constructing it, more than $450 million.
Meanwhile, out of the 59 bills analyzed in the report, only one became law.