Why Trump’s climate order might backfire

Here’s some friendly advice to U.S. business leaders who may be quietly cheering plans by President Trump and his new administrator of the Environmental Protection Agency (EPA), Scott Pruitt, to “drain the swamp” by gutting environmental regulations: Be careful what you wish for.

Not only will many Americans view such a rollback as radical, but it’s also likely to provoke a torrent of lawsuits, tempting federal and state courts to step into the policy vacuum created by a weakened regulatory regime.

Martha Coakley, the former Democratic attorney general of Massachusetts, predicts that even Republican state attorneys general will consider pairing with private plaintiffs’ attorneys to file tort actions to protect the environment in the absence of viable federal regulation. A new spate of public nuisance litigation — the tort du jour for environmental activists seeking “regulation through litigation” -— would likely result in a far more draconian and unstable set of environmental rules that what’s currently on the books.

{mosads}After all, most in Congress — with some exceptions on the extremes — have implicitly accepted the broad objective of protecting the environment while limiting economic disruption. No one wants to return to the era when the Cuyahoga River in Cleveland burst into flames.

The early signs suggest that the president’s agenda is out of step with this operating consensus. During the campaign, he reportedly said he’d like to abolish the EPA, or just “leave a little bit.” And he famously asserted in 2012 that “[t]he concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.”

The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.

— Donald J. Trump (@realDonaldTrump) November 6, 2012

It is tempting for the business community and their representatives in Congress to jump on the anti-regulatory bandwagon for obvious short-term, bottom-line reasons. But they ought to ask themselves whether kicking environmental regulation into the courts is really preferable to the status quo.

During the past 40 years, plaintiffs’ attorneys have campaigned to reinvent the ancient tort of public nuisance. Standing to profit enormously from successful public nuisance lawsuits filed on behalf of state and local governments, they convinced government officials and public-interest advocates that litigation was a a direct way to tackle environmental and public health problems including global climate change, PCB-contamination of coastal waters, childhood lead poisoning and tobacco-related diseases. With the rarest of exceptions, these efforts were unsuccessful.

Courts have generally held that administrative agencies are the more constitutionally appropriate and institutionally competent bodies to address such harms. In American Electric Power Co. v. Connecticut, the Supreme Court, without dissent, rejected a federal common law nuisance claim and agreed with Congress’s conclusion that the EPA, an “expert agency[,] is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions.”

Such judicial restraint may not survive a wholesale assault on environmental regulation by the Trump administration.

Historically, the scope of public nuisance liability has expanded when legislatures and administrative agencies failed to provide meaningful safeguards against environment harms. For example, public nuisance claims succeeded in cases involving water and air pollution in the 19th century when agencies protecting the environment did not yet exist.

Most judges, whether progressive or conservative, Republican or Democratic, do not favor abrupt changes in the law. To a greater or lesser extent, they are inclined to defer to the politically accountable branches of government, except when officials of the legislative and executive branches act outside the bounds of what have been generally recognized norms — in this case, the fundamental acceptance of a viable federal role in environmental protection.

If the new administration seeks to downsize the responsibilities of the EPA in fundamental ways at odds with the generally accepted consensus during the past 50 years, many judges are likely to push back in ways including more willingly granting standing in environmental cases and expanding the scope of liability for public nuisance.

There is little that Trump or Pruitt can do to change this. Most aspects of public nuisance law and other tort law remain state, not federal, law, and beyond the control of the president and, in most instances, even the Supreme Court.

The most influential common law tort decisions typically come from the state courts of highly populated jurisdictions such as California — states where most people (and most judges) do not share Trump’s environmental ideology. If these judges view the EPA as failing to address climate change or other environmental concerns, they will be less likely to defer to its decisions than they were before the gutting of the EPA began.

Because much of the law of public nuisance is vague and malleable, the courts can use an expanded interpretation of that tort to fill the void left by a neutered EPA. The end result would be multiple judicial orders, inconsistent with one another, seeking to regulate greenhouse gas emissions, PCB-contaminated coastal waters and other environmental harms.

The consequences of this approach for many in the business community would be far worse than continued regulation from the EPA, a single source of comprehensive regulation where representatives of affected businesses play significant roles in influencing regulation.

At the same time, my suggestion that the business community avoid the radical dismantling of the EPA does not require it to roll over and accept the many pro-environmental regulatory changes of the past eight years. For nearly a half-century, environmental regulation has ebbed and flowed with changes in administrations.

Pro-business leaders and representatives in Congress should reject the invitation to fundamentally alter or even dismantle the environmental regulatory frame of the past half-century. Any victory in this battle would be worse than merely pyrrhic. Judges, some of them progressive and most committed to what seems to them to be a fundamentally sound regulatory regime, would strike back, using expanded understandings of the public nuisance and other common law torts that would be genuinely dangerous to the stable rule of law in which free enterprise thrives best.

My advice to business leaders echoes what an economist colleague and friend once recommended to me on the topic of personal investing.

By analogy, his words seem to apply perfectly to the choice that American businesses face as they decide whether to climb aboard the Trump agenda to gut environmental regulation as we have known it in a shortsighted effort to seek a more favorable business climate: “You can make money as a bull. You can make money as a bear. But you can’t make money as a pig.”

Donald G. Gifford is the Jacob A. France Professor of Torts at the University of Maryland Carey School of Law, where he formerly served as dean. He is a member of the Progressive Policy Institute’s Center for Civil Justice Advisory Board.

The views of contributors are their own and not the views of The Hill.