Defending Our Courts from Attack by Trump Administration and Congress

Recent news coverage about Environmental Protection Agency Administrator Scott Pruitt has focused on serious ethical questions about his travel expenses and living arrangements. These issues are disturbing and deserve attention; however, they should not distract from more alarming actions Pruitt is taking – specifically, actions that can undermine our justice system and impede access to justice.

The courts have proven to be an effective check on Pruitt and President Donald Trump’s industry-friendly, deregulatory agenda. Indeed, this administration, so far, has perfected the art of losing in court. But Trump, Pruitt and members of Congress are now trying to make it harder for anyone who wants to protect public health and the environment (or any number of other rights) to get into court at all.

Since January 2017, Congress has introduced more than 50 bills that aim to strip people of the right to hold government and powerful special interests accountable in court. The EPA and the Department of Justice have adopted policies that mirror many of these legislative efforts.

This is a dangerous trajectory that should alarm both policymakers and the public. These efforts to limit access to justice threaten our values, our health, our environment and the very foundation of our democracy.

One that has clear ramifications for public health is Pruitt’s directive last October to prevent the agency from settling cases where it has potentially violated the law. This policy will force plaintiffs into protracted and costly litigation, even when the EPA has no defense for its action.

Under Pruitt’s new directive, in cases where the EPA misses clear statutory deadlines to protect public health, the agency can seek further delay, rather than protecting the American public. Instead of settling, the EPA could impose unnecessary procedural hurdles to settlement, likely forcing all parties, including taxpayer-funded DOJ attorneys, into drawn-out lawsuits. Taking away an agency’s ability to efficiently settle cases ultimately means more pollution, more missed work and school days, more doctors’ visits, and more lost lives. All this to benefit polluters’ bottom lines.

For residents of Fairbanks, Alaska, for instance, Pruitt’s approach could mean that simply taking a breath would continue to be a health hazard. Fairbanks is plagued by some of the worst particulate matter pollution in the country. This kind of pollution has been found to cause a wide range of health problems, from asthma attacks to chronic respiratory disease to premature death – and it is regulated by the Clean Air Act. But for years, the EPA and state regulators failed to enforce Clean Air Act standards that would have reduced particulate matter levels.

On behalf of community groups in Fairbanks, Earthjustice sued the EPA under the Obama administration.  In January 2017, eight years after state and municipal officials were first advised that the soot and smoke levels were unhealthy and dangerous, the EPA agreed to a settlement with the community plaintiffs. The process to clean up the air in Fairbanks is only underway because the community had the ability to go to court to hold the government accountable, and because the government chose to take responsibility for its unlawful failure, and agreed to take the action required by law. It could, on the other hand, have adopted a posture of unapologetic unlawfulness, as Pruitt’s directive would have the agency do now, likely leading to expensive and drawn-out litigation.

There is currently a bill, H.R. 469, (the so-called “Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2017”), which has already passed the House, that mirrors the Pruitt directive in many ways.  This bill would effectively turn the “no settlements” policy into law, and it would apply not just to the EPA, but across all regulatory agencies, thereby affecting far more than just environmental litigation.

These are but two examples of among more than four dozen bills and administrative policies that seek to limit or eliminate access to the courts and to effective judicial remedies. All of these policies would impose real hardship on real people – often the country’s most vulnerable. The courts help to balance the playing field for families, marginalized communities, workers, tribes and others; when the doors to the courtroom are closed, our democracy is diminished.

In a recent report, “Access to Justice: Defending Our Country and Our Courts,” Earthjustice — with help from the American Civil Liberties Union, Leadership Conference on Civil and Human Rights, and Public Citizen — details ways in which members of Congress and the Trump administration are eliminating or severely limiting court access.

These attempts to undermine access to the courts threaten our values and have far-reaching implications. We need a united front of organizations and individuals to stand together in opposition to this assault on a vital pillar of our democracy. And we need members of Congress to preserve the access to justice through the courts. The ability to safeguard our civil rights and liberties, and to defend consumer, health, safety, environmental protections and more, depends on it.

Patrice Simms is vice president of litigation for Earthjustice, based in Washington, D.C., and he began his career as an attorney in the U.S. Environmental Protection Agency’s Office of General Counsel, and later served as a counsel to EPA’s Environmental Appeals Board and as a senior attorney with the Natural Resources Defense Council.

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