The Energy 202: Trump administration seeks to block legal briefs from Democrats in national monuments case

But in an unusual if not unprecedented legal maneuver, a Justice Department lawyer submitted a motion on Tuesday to the U.S. District Court for the District of Columbia asking it to “exercise its discretion to deny” the so-called amicus briefs from the congressional delegation and other groups.

Amici curiae, or friend-of-the-court briefs, are arguments filed by individuals or organizations not formally involved in a case but that nevertheless believe they have a strong interest in its outcome.

The Justice Department argued that requiring the government respond to the friend-of-the-court briefs at this stage of the national monuments case will be too time-consuming since they will already be addressing the legal concern they raise elsewhere.

“This blitz of non-party briefing,” Deputy Assistant Attorney General Jean E. Williams wrote in a filing Tuesday, “is inherently prejudicial.”

Justice Department spokesman Wyn Hornbuckle declined to comment “beyond our filing in court.” Given DOJ's objections, the court must now determine whether to accept the amicus briefs in the case.

But a number of legal experts, along with the office of one of the lawmakers leading the amicus effort, say they cannot recall another time DOJ has tried to block members of Congress from filing amicus briefs.

“I am shocked that DOJ has tried to block an amicus brief — any amici, let alone from a member of Congress," Judithanne Scourfield McLauchlan, an associate professor of political science at the University of South Florida at St. Petersburg, who wrote “Congressional Participation as Amicus Curiae before the U.S. Supreme Court” said by email.

“I have never heard of that,” she added.

Anthony Franze, an appellate lawyer at the Washington-based firm Arnold & Porter who studies amicus practice, said the move by DOJ  “is as extraordinary as it is troubling” since general department policy dictates that government attorneys consent to almost all amicus briefs.
 
“Opposing is also tactically questionable because it tends, as here, to only highlight the brief,” he added.

Reagan W. Simpson, a partner at the Houston-based law firm Yetter Coleman LLP who has also written books about amicus briefs, wrote by email that he too is “not aware” of a situation in which Justice has opposed such a filing from Congress.

However, he agreed DOJ's reasoning that responding to a flurry of amicus briefs at the district court level could be difficult. “The objection seems to be one of timing and ability to respond rather than a rejection of the rights of members of Congress," he said. 

Simpson argued the filing of amicus briefs in district court, the lowest rung of the federal judiciary, is itself uncommon. The practice is usually reserved for appellate or Supreme Court cases.

Sen. Tom Udall (D-N.M.), who along with Rep. Raúl Grijalva (D-Ariz.) coordinated the congressional amicus brief, expressed indignation at the idea the Trump administration is trying to prevent the views of members of Congress from being heard in court.

“It is ludicrous, and apparently unprecedented, that the political leadership at [Justice] would formally oppose an amicus brief from over 100 members of Congress — especially in a case like this, where Congress has a unique interest and the separation of powers and congressional intent are being weighed,” Udall said in a statement.

The Congressional Research Service, a nonpartisan arm of the legislative branch, had told Udall's office that it could not find another instance of the department opposing amicus briefs from members of Congress, though it could not categorically say that executive-branch lawyers have never tried to do so.

“We should all be asking why the Trump DOJ is taking an unheard-of step,” Udall said.

In their filing, congressional Democrats argued that the 1906 Antiquities Act gives the president the power only to make, but not unmake, national monuments. Because the Constitution vests in Congress authority over federal lands, only the legislature can shrink national monuments by passing laws, they argue.

The Antiquities Act was originally passed to help protect from plunderers archaeological sites containing Native American artifacts. But over time, presidents of both parties have used the law to unilaterally protect ecological sensitive areas as well. While the creation of a national park requires an act of Congress, establishing a national monument involves only the stroke of a president's pen.

The formation of Grand Staircase-Escalante in 1996 by Bill Clinton and of Bears Ears 20 years later by Barack Obama proved to be particularly controversial in Utah, where like in many other areas of the western United States, residents are suspicious of what they see as the federal government's overwhelming authority. 

At the behest of Utah's all-Republican congressional delegation, Trump flew to Salt Lake City last December to announce his decision to grant greater access to areas once within the monuments' boundaries.

“They don't know your land, and truly, they don't care for your land like you do,” Trump told a crowd. “But from now on, that won't matter.”

Since then,  environmentalists, Native American groups and Democrats have been concerned that altering the monuments' boundaries would eventually allow industries such as coal mining and oil drilling to work in the area.

"These monument reductions are illegal and open the door to presidents ignoring Congress whenever they feel like it," Grijalva said when originally filing the amicus brief earlier this month.

— Expected House chair of Natural Resources panel calls for Ryan Zinke's resignation: Grijalva, who is set to lead the House Natural Resources Committee come January, called on Trump's interior secretary to step down "immediately" due to the number of internal probes into him and his department. "I take no pleasure in calling for this step, and I have resisted it even as questions have grown about Mr. Zinke’s ethical and managerial failings," the Arizona Democrat wrote in a USA Today op-ed. "Unfortunately, his conduct in office and President Donald Trump’s neglect in setting ethical standards for his own cabinet have made it unavoidable."

Grijalva's committee oversees the Interior Department, and the lawmaker has already indicated his interest in calling Zinke before the panel to explain discussions surrounding a deal in Whitefish, Mont., between the Zinkes’ family foundation and Halliburton chairman David Lesar. 

— “The result of the investigation was inconclusive": The Environmental Protection Agency's internal watchdog office closed two probes into Scott Pruitt's conduct while running the agency without reaching any conclusions, The Post's Juliet Eilperin and Brady Dennis report. The agency's Office of Inspector General said it could not determine whether Pruitt violated federal law due to his use of staff members for personal purposes and his rental of a condo from a lobbyist. The OIG made the move because Pruitt  resigned in July before he could be interviewed. The office also cleared former policy chief Samantha Dravis of charges brought by Sen. Thomas R. Carper (D-Del.) she skipped work for three months. 

— "Donald Trump is now the face of climate denial": Al Gore called Trump the “face of climate denial” in an interview with Trevor Noah on “The Daily Show” this week, The Post's Avi Selk reports. But he added: “I think some of the mobilization that is really building... I think part of that is a reaction to what Donald Trump is saying and doing.” The former vice president's remarks come days after Trump dismissed out of hand the findings of a major climate report his administration released on Black Friday.

— Nearly two-thirds of Republicans now believe in climate change: A new poll from Monmouth University found that 64 percent of Republicans say they believe the climate is changing, up from 49 percent in 2015. Overall, 78 percent of Americans believe the Earth’s climate is warming and causing extreme weather and sea level rise, per the report, another increase from 70 percent in 2015. The report was conducted before the release of the Trump administration’s dire national climate assessment.

— Clock ticking once again on the flood program: A congressional stalemate over flood insurance is one example of the “difficulty of enacting the type of reforms urged last week in a U.S. government report on climate change — even for Democrats, who embraced the report’s findings,” Bloomberg News reports. The National Flood Insurance Program is scheduled to expire at midnight on Friday. This week, the House and Senate passed a week-long extension that now awaits Trump’s signature. A flashpoint, according to the report, is the GOP’s effort to eliminate subsidies. “Democrats talk a good game when it comes to the urgency of climate change, but then they turn right around and vote for the National Flood Insurance Program, a program that subsidizes building in known flood plains,” Sen. Mike Lee (R-Utah) said.

— Official search for dead in Camp Fire is completed: After three weeks of checking every burned building in the fire zone, the official search for dead following the devastating Camp Fire has ended. “But the search of nearly 18,000 fire-ravaged structures — everything from homes, churches, stores and garden sheds — has not resolved the question of why nearly 200 people remain on the list of the missing,” the New York Times reports. “It is possible that the death toll, which stands at 88, will rise, if some remains were overlooked or are found later in forests or other areas that were not searched,” per the report. But Butte County Sheriff Kory L. Honea is also “very optimistic” that those remaining on the list of missing would turn up alive.

Eyes on Pacific Gas & Electric: In a report earlier this week, the utility sought to explain its decision not to deenergize its power grid earlier this month, even as it had warned customers about a possible shutoff. In the filing, PG&E said it “determined weather conditions were no longer dangerous enough to warrant a power shut off the afternoon of Nov. 8, hours after a wind-whipped fire was already destroying parts of Butte County,” the Associated Press reports. The utility warned 70,000 customers on Nov. 6 that it may shut off power to Butte and eight other counties, but by the afternoon of Nov. 8, the report said it had determined not to shut power off. By that day, the fire was already raging.

Meanwhile, California's utility regulator voted to order PG&E to adopt safety recommendations over a gas pipeline explosion from 2010. The move comes amid a question over the fate of the company overall.  "As protesters chanted 'No bailout' at a public meeting Thursday, California Public Utilities Commission President Michael Picker said the company 'lacks a clear vision for safety' and will face a sweeping review following the deadliest wildfire in state history," Bloomberg News reports.

Coming Up

• Former Vice President Al Gore hosts the eighth annual 24 Hours of Reality broadcast on the worldwide impact of climate change on Dec. 3-4. 
• The House Energy and Commerce Subcommittee on Environment holds a hearing on a discussion draft of the 21st Century Transportation Fuels Act on Dec. 5.
• The Senate Energy and Natural Resources Subcommittee on National Parks holds a legislative hearing on Dec. 5.

—"Keep going": The Butte County Sheriff’s Office released body camera video of a deputy who narrowly escaped the Camp Fire.