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At @policyintegrity, we’ve been tracking challenges to Trump agency policies, and @Interior has won only 19% of its cases. But in a recent Bloomberg @environment opinion piece, solicitor Daniel Jorjani claims an 80% win rate. Let’s explore this enormous discrepancy (a thread).
Without transparency on what cases Interior is counting as wins and losses, this number could easily just be puffery – a term lawyers use for exaggerations. Also a term you could use if my five-year-old told you that she eats her vegetables 80% of the time.
Jorjani’s 80% claim includes all actions that have not been challenged, so it does not tell you Interior’s win rate in court. All administrations take actions that avoid challenge either because the actions are run-of-the-mill or because challenges are so resource-intensive.
So it should not be surprising that he can come up with a favorable percentage by changing the denominator.
And Jorjani’s classifications raise some questions. One of the cases he lists as a “notable court vindication” is just a procedural decision where the court transferred the case to another district -- where the case remains pending. (Pac. Coast Fed. Of Fishermen’s Assocs).
Meanwhile, the long list of losses includes overturned rules on endangered species, royalty procedures, and migratory bird protections. These rulings follow a pattern where the agency flouts legal requirements and loses at times even in front of Republican-appointed judges.
A whole new group of @Interior actions may soon be tossed aside since a judge has ruled that the head of the agency’s Bureau of Land Management was serving in his post illegally. https://www.eenews.net/stories/1063716439
Jorjani also claims that “nearly all the remaining legal issues are being actively litigated on appeal.” But of the 25 losses on @policyintegrity’s tracker, Interior has only appealed 5, with two more where the time for appeal has not run yet.
Of the appealed losses, one loss has been affirmed and four are pending.
Jorjani does not include in his tally "routine, non-discretionary matters like deadline cases." But a loss in a case like that would occur where someone has shown that the agency has failed to abide by the law – non-discretionary law at that.
So if the tally does not include those cases, Jorjani cannot possibly support the claim that the agency is complying with "relevant statutory mandates and constitutional structure."
Bottom line: the court losses that @Interior has suffered show an agency trying again and again to roll back regulations and failing to comply with basic statutory rules when doing so. The record speaks for itself.
