Earlier this week, just before we gathered with friends and family to celebrate our country’s 241-year-old experiment in democracy, something beautiful happened—a shining example of the separation of powers that paradoxically strengthens our government by splitting it into three distinct, coequal branches.
I’m speaking of the ruling by the U.S. Court of Appeals for the District of Columbia Circuit stating that the Trump administration lacked the authority to ignore pollution rules set forth by the Obama administration while it considered changing them. U.S. Environmental Protection Agency chief Scott Pruitt’s decision to pause his agency’s enforcement of limits on methane emissions from new oil and gas wells was, in the words of the majority, “essentially an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule.”
Whether Pruitt and his boss, Donald Trump, like it or not, neither of them gets to amend or revoke a major component of the Clean Air Act with the stroke of a pen or the utterance of a few words. They’ll fight back against the ruling, of course; that’s to be expected. In the meantime, the judicial branch has spoken: Oil and gas drillers must continue monitoring their methane emissions and fixing their leaks.
You probably weren’t discussing the separation of powers or the finer points of American administrative law as you grilled and guzzled your way through the Fourth of July. (If you were, I totally want to party with you next year.) But it’s worth noting that the D.C. circuit court’s correct decision in this case represents all that is right with our system, even if the EPA’s attempt to circumvent the Clean Air Act and do the bidding of oil and gas companies represents all that is currently wrong with it.
It’s also vital to understand that court decisions like this one don’t just materialize out of thin air. Someone—a plaintiff—has to get the ball rolling, typically by filing a lawsuit. In the methane pollution case, the plaintiff was a consortium of environmental groups (including NRDC) joined by more than a dozen cities and states. Their suit claimed that Pruitt wasn’t legally authorized to issue a stay on these rules, a decision made without public input—and, by the way, right after a behind-closed-doors meeting at the Trump International Hotel with members of the American Petroleum Institute.
Back in March, reporters asked Senator Sheldon Whitehouse, a Democrat from Rhode Island, how he and others planned to fight the Trump administration’s aggressive plans to roll back environmental regulations that protect Americans from air pollution and climate change. “The heart of the battle,” he said, “is going to be litigation.”
Indeed it is. At a political moment when the executive branch is awash in climate change deniers and a party that routinely puts business interests before the public interest controls both houses of Congress, the courts are our best hope for challenging terrible decisions and counteracting bad policy. Laws may change, but the rule of law doesn’t. When President Trump thinks he can magically undo legislation with an executive order, or when Scott Pruitt thinks he can simply direct his EPA to ignore regulations that his buddies in the oil and gas industry find burdensome, Americans need to feel certain that a legitimate check on abuses of power still exists.
Trump knows this. Six months into his presidency, the courts have effectively blocked a number of key items on his agenda, from his travel ban to his plans to punish so-called sanctuary cities. The ruling on methane emissions is just the latest reminder that for all of his power, the rule of law is still more powerful. Eventually he will have to come to terms with the fact that the executive orders he’s so fond of signing don’t transform the world all by themselves. They get scrutinized. And if they don’t pass inspection, the judiciary will invalidate them.
The rub is that challenging executive orders takes incredible amounts of time, money, effort, and perseverance. Fortunately, activists and advocates are organized and galvanized; they’re up for the fight, as ready as they’ve ever been to stand up for the planet, its people, and our country’s rule of law.
There are countless ways to #resist the daily assault on our environment by a president who doesn’t get it and a congressional majority that doesn’t care. Every tactic is worth supporting. But if you really want to stop the perpetrators in their tracks, there’s no substitute for a well-considered, skillfully wrought legal challenge. As long as we have the law on our side, we can force them back to the drawing board every time.
Oh, and there’s another benefit to this approach: On top of slowing them down considerably, it really drives them crazy.
onEarth provides reporting and analysis about environmental science, policy, and culture. All opinions expressed are those of the authors and do not necessarily reflect the policies or positions of NRDC. Learn more or follow us on Facebook and Twitter.
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