As I’ve noted previously, the fight over the Trump Administration’s effort to change course on a number of Obama environmental initiatives is going to focus in significant part on FCC v. Fox Television Stations, in which the Supreme Court stated that agencies are free to reconsider policies so long as:
the new policy is permissible under the statute, there are good reasons for it, and the agency believes it to be better.
Based on the decision last week in California v. BLM, if the Administration thinks that it can simply wave FCC v. Fox Television Stations before the Courts and succeed in making 180 degree turns in policy, it might want to think again. In California v. BLM, the Court struck down BLM’s rule suspending the 2016 Waste Prevention Rule, intended to reduce waste from natural gas production on federal lands.
Let’s just say that BLM’s arguments in support of the rule were less than persuasive. As the Court noted:
BLM does not have to provide the same reasoned analysis in support of a temporary suspension that it would for a future substantive revision, but it must nonetheless provide good reasons for the Suspension Rule. To the extent that its reasoning contradicts the reasoning underlying the Waste Prevention Rule, it must be prepared to provide the requisite good reasons and detailed justification.
New facts or evidence coming to light, considerations that BLM left out in its previous analysis, or some other concrete basis supported in the record—these are the types of “good reasons” that the law seeks. Instead, it appears that BLM is simply “casually ignoring” all of its previous findings and arbitrarily changing course. Given the various concerns that contradict the factual findings underpinning the Waste Prevention Rule, and BLM’s failure to provide the detailed justifications necessary to explain such contradictions in support of the Suspension Rule, Plaintiffs have shown a reasonable likelihood of success on the merits of their claim that the Suspension Rule is not grounded in a reasoned analysis and is therefore arbitrary and capricious.
We haven’t seen the last of these cases. Just how much evidence does the administration need if it wants to change course? That’s going to be the question the courts will face repeatedly over the next few years.