Borrowing G.O.P. Playbook, Democratic States Sue the Government and Rack Up Wins

Borrowing G.O.P. Playbook, Democratic States Sue the Government and Rack Up Wins

The Trump administration’s approach to eliminating regulations it considers burdensome tends to be more chaotic and less orderly than in earlier administrations. Democratic attorneys have tried to use that to their advantage when filing lawsuits by focusing on procedural violations under the Administrative Procedures Act, a dry area of jurisprudence that governs agency rule-making.

So far, federal courts have found five times that the Trump administration violated the Administrative Procedures Act by skipping steps when it tried to delay environmental rules that had already taken effect. Administrative procedures “was not my favorite class in law school,” joked Karl A. Racine, the attorney general for the District of Columbia. But now it’s at the core of his effort to fight the Trump administration.

Critics of the lawsuits by Democrats — like David B. Rivkin Jr., an attorney with the law firm BakerHostetler who helped Republicans fight the Clean Power Plan case — dismissed the Democrats’ early victories as “sausage making” because they were based on procedural missteps as opposed to the substance of the regulations. “It doesn’t tell you anything about what’s going to be decided at the end of the day,” he said.

But Maura Healey, the attorney general of Massachusetts, said that following the proper rule-making procedures was important because doing so prevents arbitrary or capricious regulation. “I don’t care what party you’re a part of,” she said. Doing otherwise “flouts the law.”

Officials at the E.P.A. and Energy Department did not respond to requests for comment.

An Interior Department spokeswoman referred questions about the agency’s legal strategy to the Department of Justice. Wyn Hornbuckle, a Justice Department spokesman, said in a statement that lawsuits from coalitions of state attorneys general “are nothing new.”

Mr. Hornbuckle pointed to Republican legal victories against the Obama administration, such as the case against the Clean Power Plan, and said, “The Justice Department will continue to defend the rightful prerogative of federal agencies to appropriately review and reconsider the costs and benefits of regulations adopted in previous administrations. This includes defending agency decisions to place implementation of existing regulations on hold while they are under review.”

There are some Trump supporters (as well as a few critics) who say that what appears to be haste or carelessness on the part of the administration might actually be strategy. With each major announcement of a rule rollback, the Trump administration reinforces its message that it is cutting regulatory burdens on industry — a message that resonates with its donors and voters. Even if courts later find against the administration, that message was already sent.


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