- The Washington Times
Wednesday, March 8, 2017

Worried that the Trump administration won’t mount an effective defense of former President Barack Obama’s environmental policies, green groups rushed to court this week begging to intervene in a looming lawsuit, saying they will make the case on their own. It’s one of the key ways environmentalists are ramping up their resistance to President Trump.

Three of the nation’s leading environmental organizations petitioned a federal court to allow them to intervene in a case revolving around a fishing rule issued in the waning days of the Obama administration.

If the court grants their request, they will be defendants alongside the federal government, even though the initial lawsuit did not directly involve them.

At issue is the Obama-era Seafood Traceability Rule, which does not go into effect until next year and would require all seafood importers to track and report where certain species of at-risk fish were caught and provide authorities with a host of other information.

Fearing the Trump administration will abandon the rule — which is facing a legal challenge from the National Fisheries Institute and other groups that say the regulations will drive up prices for consumers — the Natural Resources Defense Council, Oceana and the Center for Biological Diversity want to do federal attorneys’ work for them.

They argue that the rule is vital to help curb illegal and unreported fishing and that it should be upheld even if the administration wants to scrap it.

“I think the American public really can and should expect that good policies put in place by one administration stay in place for another administration, and we do think this is good policy,” said Sarah Uhlemann, a senior lawyer with the Center for Biological Diversity who filed a motion to join the case late Tuesday.

There have been other high-profile instances in which groups have gone to court to defend laws or regulations that an administration had abandoned.

House Republicans, for example, went to court several years ago to defend the Defense of Marriage Act after the Obama administration wouldn’t mount its own defense of the law.

“Motions like this are a normal part of court cases where there are people or organizations who are potentially affected by a case brought by someone else and would like to participate,” said Eric Bilsky, assistant general counsel with Oceana.

Ms. Uhlemann said the seafood rule is good public policy and that the environmental coalition wants to prevent a “sweetheart settlement” between the Trump administration and the plaintiffs.

Such a sweetheart deal would mirror the “sue and settle” tactics frequently employed during the Obama administration. In that practice, an outside group would sue a federal agency and make specific policy or regulatory demands, and the agency would often settle the case by giving the plaintiff much, if not all, of what it wanted.

Republicans criticized the practice as backdoor lawmaking and a way to circumvent normal legislative procedures.

Now environmentalists fear the tables will be turned and the Trump administration will scrap Mr. Obama’s rules through court settlements.

The National Fisheries Institute, the lead plaintiff in the fishing rule lawsuit, argues that enough regulations are on the books already to ensure that the seafood supply is safe.

The organization — which filed its lawsuit challenging the rule before Mr. Obama left office — also says the environmental groups are overstepping their bounds and raised the question of whether they helped craft the plan in the first place.

“We find it curious that these groups have so little faith in Department of Justice attorneys that they feel the need to come in and do the work of defending the government for them,” said Gavin Gibbons, a spokesman for the National Fisheries Institute.

“We are specifically suing the government because it improperly and illegally crafted a costly and duplicative rule. In inserting themselves in this lawsuit, it would appear that these outside groups are suggesting they were somehow involved in crafting that rule, a dynamic that raises a whole different set of questions,” Mr. Gibbons said.

The Justice Department declined to comment on whether the administration will defend the seafood rule.

The government could choose not to defend the regulation and allow the environmental groups to take over as the sole defendants.

Before that can happen, the U.S. Court of Appeals for the District of Columbia Circuit must allow them to intervene.

In their court filing, the environmental groups tried to prove that they have legal standing in the case — in other words, that voiding the seafood regulations would have a direct, adverse impact on them.

“Removing these protections, as Plaintiffs seek to do in this case, would erase the Seafood Traceability Rule’s benefits to Applicants’ members and harm their interests in consuming healthy and sustainable food, making informed choices about what they are eating, and reducing the harms caused by [illegal] fishing,” they wrote. “These harms to Applicants’ members’ legally protected aesthetic, consumer, scientific, and recreational interests from the relief Plaintiffs seek in this case satisfy” the question of legal standing.

Such cases could become increasingly common.

A coalition of New England fishermen’s groups filed a lawsuit this week challenging a 5,000-mile offshore monument that Mr. Obama designated in September.

The groups claim the monument — a prime example of the former president’s expansion of executive authority under the century-old Antiquities Act — will hamper the fishing industry and crush coastal economies.

It’s not clear whether the Trump administration will defend that monument in court, or if outside groups will seek to intervene, or if a judge revokes the monument because the administration does nothing.

The White House said Wednesday that the Justice Department is reviewing its options in the case.

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