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Signs of Potential Trouble Ahead for Trump Administration’s Deregulatory Agenda

In separate decisions, a federal district court in Alaska recently struck down two Trump Administration efforts to roll back President Obama’s environmental initiatives. Taken together, these decisions signal that citizen suits can, in some sense, limit the ability of the administration to “deregulate.” To the regulated community, these decisions should serve as a warning that we continue to be in an ever-shifting legal landscape where individual decisions can buck the current deregulatory climate.

In the first case, Friends of Alaska National Wildlife Refuges v. the U.S. Department of the Interior, the District of Alaska held that the administration’s planned road through a national wildlife refuge violated federal law. The road at issue was meant to connect two small communities on either side of the 311,000-acre Izembek National Wildlife Refuge. In 2013, after decades of investigation and assessment, the Department of Interior shut down the project when it found that the road “would lead to significant degradation of irreplaceable ecological resources[.]” In 2017, the Trump-appointed secretary of the interior reversed course, entering into a land exchange agreement to swap portions of the refuge with nearby land.

A coalition of citizen groups challenged the land exchange agreement, and the court struck down the agreement for providing “no justification at all” as to why the Department of Interior had reversed course on decades of findings. The court held that the department’s action was “arbitrary and capricious” and therefore impermissible under the Administrative Procedures Act. The ruling halted plans to construct the road, but the government is expected to appeal.

In the second case, a different coalition of citizen groups challenged the president’s plan to continue oil and gas drilling in portions of the Outer Continental Shelf off of Alaska in the second case, League of Conservation Voters v. Trump. In 2015 and 2016, President Obama withdrew certain areas of the Outer Continental Shelf from oil and gas leasing pursuant to the Outer Continental Shelf Lands Act (OCSLA), by which “[t]he President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf.”

A 2017 executive order purported to reverse President Obama’s 2015 and 2016 withdrawals, but the League of Conservation Voters decision held that this was impermissible under OCSLA, which allows presidents to withdraw land from use in oil and gas drilling, but does not permit revocation of those withdrawals. This ruling froze any impending oil and gas drilling in the relevant areas of the Outer Continental Shelf, but the government is again expected to appeal.

These two decisions may portend increasing difficulty in implementing the Trump Administration’s otherwise successful deregulatory agenda. More citizen suits challenging the administration’s moves are working through the courts. The recent shift to split political control of Congress will also present an additional challenge to deregulation.

© 2019 Schiff Hardin LLP

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About this Author

Robert A. Middleton, Schiff Hardin, Chicago, Energy Lawyer, Litigation
Associate

Robert Middleton is taking advantage of the opportunity for new associates to work in several practice groups for broadened experience and expanded legal counseling perspectives.

Prior to joining Schiff Hardin, Mr. Middleton was with Northwestern University’s Center on Wrongful Convictions, first as a 711 student, and, after graduation, as a Public Interest Law Initiative Fellow. He also gained valuable experience as a Schiff Hardin summer associate in 2013. Earlier, Mr. Middleton was a legal intern with Equality Illinois.

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J. Michael Showalter, Litigator, Schiff Hardin LLP
Associate

Mike Showalter is a litigator whose practice is focused on resolving complex disputes. Mr. Showalter's past clients span diverse industries including manufacturing, mining, power generation and transmission, oil and gas, the financial and insurance sectors, and process outsourcing.

Mr. Showalter's practice has focused on distilling complicated technical information into a format where it can be understood by decision makers. He has worked with experts in fields including medicine, economics, history, physical sciences, industrial hygiene, toxicology, environmental engineering and risk assessment.

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