• Mark Ryan

The Trump Administration and the Courts

As I have often pointed out in my various blogposts, the fate of many of the proposed CWA rulemakings hinges on the election and on the how the courts dispose of the many lawsuits challenging the administration's action. If Trump loses to Biden, the current deregulatory effort comes to screeching halt and many of the rulemakings will likely be reversed (over time). If Trump wins reelection, attention will turn to the courts as they decide the myriad lawsuits that have and will be brought challenging Trump's efforts.

NYU's Institute for Policy Integrity has been tracking the many lawsuits brought against the Trump administration for everything from environment to immigration. And the data they have collected are instructive. According to the Institute's website, as of July 27, 2020, DOJ has lost 93 out of 105 court battles since Trump took office. DOJ has historically done very well in the courts because it has typically been strategically conservative in its legal arguments and it knows how to litigate in federal court better than just about any other private or public institution. So this new track record is eye-opening. A 12-93 win-loss record would get any professional sporting coach fired before the season were over.

Looking at environmental, energy and natural resources cases only, the Trump administration's numbers are equally bad with a record of six successful and 57 unsuccessful cases. Based on my review of CWA cases as well as personal experience litigating CWA cases against EPA over the last three years (both as a plaintiff and as a defendant), I think this negative track record is primarily attributable to two practices of the current administration: (1) hurried, sloppy attention to the details of procedure and (2) pushing the envelope of legal authority.

If you support deregulation, there is much to cheer in the current administration's efforts, but there is little to celebrate in terms of results. Pushing out so many large, complicated rulemakings in just a little over three years, I think, was overly ambitious. They've cut a lot of corners to meet this ambitious schedule. My sources inside the agency tell me the political appointees routinely ignore the well-meaning advice of the career staff. In the process, they've left a lot of low-hanging fruit for the enviros and states to go after. One former colleague told me about the low-hanging fruit, "you'll need a helmet to keep from getting knocked in the head by it all."

NYU's site is very interesting, and allows the reader to filter for several variables. It is also very heavily footnoted, describing how the authors categorized cases, so you can decide for yourself if you agree with their headcount. Here's link to the site:

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