League of Conservation Voters v. Trump: a Potential Blueprint to Challenging Environmental Policy Rollbacks

JurisdictionUnited States,Federal
Publication year2019
CitationVol. 36

§ 36 Alaska L. Rev. 109. LEAGUE OF CONSERVATION VOTERS V. TRUMP: A POTENTIAL BLUEPRINT TO CHALLENGING ENVIRONMENTAL POLICY ROLLBACKS

Alaska Law Review
Volume 36, No. 1, June 2019
Cited: 36 Alaska L. Rev. 109


LEAGUE OF CONSERVATION VOTERS V. TRUMP: A POTENTIAL BLUEPRINT TO CHALLENGING ENVIRONMENTAL POLICY ROLLBACKS


Nick Buchta [*]
Quentin Jorgensen [**]


ABSTRACT

This Comment examines the recently rejected motion to dismiss in League of Conservation Voters v. Trump and its potential to serve as a roadmap for environmental organizations seeking to challenge regulatory rollbacks by the Trump administration. In 2017, President Donald Trump issued an executive order reversing the designation of 128 million acres of ocean as protected from oil and gas leasing. The League of Conservation Voters, along with other environmental activists, sued to enjoin the rollback, and administration officials subsequently filed a motion to dismiss. This Comment focuses on the issue of Article III standing in the case, wherein the plaintiffs must allege (1) an injury in fact that is (2) fairly traceable to the challenged conduct and (3) that a favorable judicial decision will likely redress. Prior to League of Conservation Voters, case law had not established injury in fact on the basis of potential harm to public lands caused by government deregulation. Thus, the ruling that such an injury can be established-even over an area 128 million acres in size-reflects an opportunity for environmental activists attempting to stop rollbacks.

I. INTRODUCTION

Since the election of President Donald Trump, environmental organizations have often found themselves at odds with environmental regulators. In 2015 and 2016, using his authority under the Outer Continental Shelf Lands Act of 1953 (OCSLA), President Barack Obama withdrew 128 million acres of coastal parts of the Arctic and Atlantic Oceans from oil and gas leasing. [1] Shortly after his inauguration, President Trump issued Executive Order 13795, reversing President Obama's prior withdrawals. [2] One week later, on May 3, 2017, a group of environmental organizations, including the League of Conservation Voters, Natural Resources Defense Council (NRDC), Sierra Club, and The Wilderness Society, among others, jointly filed suit in the U.S. District Court in Alaska, alleging before Judge Sharon Gleason that OCSLA does not give the President authority to reverse prior withdrawals. [3]

The federal defendants and the intervenors filed motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the basis of (1) sovereign immunity, (2) the lack of a private right of action, (3) the court's inability to issue declaratory relief against the President, and (4) the lack of Article III standing. [4] In League of Conservation Voters v. Trump, the district court dismissed each alleged basis for the defendants' motion to dismiss, [5] thereby permitting the litigation to proceed.

League of Conservation Voters creates a potential blueprint for environmental and other organizations to follow as they seek to take their fights against administration policies to the courtroom. The case is significant for its analysis of Article III standing-particularly for showing that litigants suing to protect public lands can satisfy the standing requirement for injury in fact-though the additional three hurdles the plaintiffs overcame are also important. This Comment will first go through the statutory and case history surrounding the withdrawal of federal lands from oil and gas leasing, followed by a closer look at the district court's ruling in the case. Subsequently, it will analyze the issue of standing in particular, as well as the broader applicability of this approach for environmental organizations challenging regulatory rollbacks. This Comment will establish that League of Conservation Voters acts as a green light for such organizations to move their conflicts with the present administration to the courts.

II. REVERSING FEDERAL LANDS PROTECTIONS AND CHALLENGES BY ENVIRONMENTAL GROUPS

OCSLA gives the Secretary of the Interior responsibility for the mineral exploration and development of the Outer Continental Shelf (OCS). [6] Under OCSLA, the President "may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf." [7] OCSLA has been amended several times since 1953; however, none of these changes have altered the ultimate mechanisms by which land is withdrawn from exploration. [8] The statute does not have an explicit mechanism for the President to rescind a withdrawal, and no previous President has ever attempted a withdrawal. [9] This presents two major questions with President Trump's Executive Order: first, whether a subsequent President may rescind a Section 12(a) withdrawal; second, who has standing to challenge a rollback. [10] The present order only answers the second question.

In order to establish standing, plaintiffs must sufficiently allege (1) an injury in fact that is (2) fairly traceable to the challenged conduct and (3) that a favorable judicial decision will likely redress. [11] To prove an injury in fact, plaintiffs must show the harm is imminent, geographically specific, and particularized. [12] Courts have effectively recognized that injury in fact can be established even where the harm is contingent upon a series of future actions by third parties. [13] However, prior to League of Conservation Voters, case law had not established injury in fact on the basis of potential harm to public lands caused by government deregulation. While it is not novel for plaintiffs to be able to suggest a particularized injury, rather than just general harm, as a result of deregulation, [14] the case ventures into new territory with respect to the geographic scope of the claimed injury-covering 128 million acres of ocean. [15]

The ruling in League of Conservation Voters has already served as a guide elsewhere in the world of environmental litigation. The NRDC relied on it as a basis for establishing injury in fact in its brief opposing the government's motion to dismiss in Hopi Tribe v. Trump, [16] a suit challenging the Trump administration's decision to make 1.15 million acres of Bears Ears National Monument available to mining interests. [17] League of Conservation Voters v. Trump also offers implications for standing in cases like a suit brought by Our Children's Trust, filed on behalf of a group of children challenging government inaction in combatting climate change. [18] The ongoing litigation offers further opportunity to flesh out what these challenges to litigation may look like-as long as they can get over initial hurdles to dismiss.

III. THE LEAGUE OF CONSERVATION VOTERS BRINGS SUIT

On April 28, 2017, President Trump issued Executive Order 13795, rescinding the previous withdrawal of 128 million acres of the continental shelf from offshore exploration. [19] The next day, the Secretary of the Interior issued an order, which called in part for the expedited consideration of seismic permitting applications. [20] These applications permitted the use of loud sound pulses to identify potential oil and gas deposits-pulses which several environmental organizations, including the League of Conservation Voters, claimed would harm and potentially kill various fish and marine mammals. [21] The environmental activists brought suit on May 3, 2017, alleging that the action both exceeded the President's Article II powers [22] and was ultra vires as OCSLA does not authorize the President to reverse a prior withdrawal. [23] The suit named President Trump, then-Secretary of the Interior Ryan Zinke, and Secretary of Commerce Wilbur Ross as defendants, with the American Petroleum Institute and State of Alaska permitted to join as intervenors. [24]

In the present opinion, the district court considered dismissal on the basis of (1) sovereign immunity, (2) the lack of a private right of action, (3) the inability of the court to issue declaratory relief against the President, and (4) a lack of Article III standing. [25]

The court quickly dispensed with the first three arguments. [26] With respect to sovereign immunity, the court noted the present case fits neatly into the exception to the sovereign immunity doctrine where an officer makes an allegedly unconstitutional act in the sovereign's name. [27] It explained that a statutory grant of a private right of action is unnecessary because the plaintiffs are not suing to enforce federal law, but rather to challenge the President for allegedly exceeding his constitutional authority. [28] The court largely sidestepped the issue of declaratory judgment, noting that, should the plaintiffs win, an injunction against subordinate officials should be sufficient, thereby obviating the problems with issuing a declaratory judgment against the President. [29]

The court spent more time on Article III standing, which requires the plaintiffs to allege (1) an injury in fact that is (2) fairly traceable to the challenged conduct and (3) that a favorable judicial decision will...

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