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Environmental Regulation in the Trump Era

By Sarah Kellogg

January 27, 2017

power plant

Unraveling environmental regulations put in place by the Obama administration, particularly rules addressing climate change, has become a top priority for the Republican Congress and the new president. On January 24 President Trump signed two executive orders that would clear the way for the controversial Keystone XL and Dakota Access pipelines, as well as ordered the U.S. Environmental Protection Agency (EPA) to freeze its grants and contracts.

But the process won’t likely be as swift as Republicans might wish. That’s because all federal regulations are not created equal. There are rules and rulemaking processes that can be addressed by executive order on Day 1, and others that will take as many or more years to reverse as it took to promulgate them.

“There are limited resources in the executive branch and Congress,” says Sam Batkins, director of regulatory policy at the American Action Forum, a free-market advocacy group. “They are not going to have all the time in the world to go after environmental regulations. They have to get on the same page and move forward together to be effective in reversing Obama’s regulations.”

With more than 600 major regulations issued by President Obama during his tenure, the GOP Congress has been biding its time. Following up on his campaign promise to make war against federal regulations, Trump said in a post-election video, “I will formulate a rule which says that for every one new regulation, two old regulations must be eliminated.”

Some actions will come quickly. On Day 1 the new president can undo all of Obama’s executive orders, discretionary agency directives, presidential memoranda, interpretive rules, and guidance documents (both Obama and George W. Bush did this to their predecessors’ edicts). The lack of durability of these documents reflects the ease with which they were put into place.

While the list of regulations for reconsideration is long, the new administration has shown a particular hostility to environmental rules, especially those around climate change. An example of an Obama agency directive with a short lifespan is EPA’s guidance that agencies weigh climate change when completing environment assessments for various proposals.

In the shorter term, presidents can also act to freeze pending rules that have not been published as final in the Federal Register. Under the Congressional Review Act (CRA), Congress has the authority, by a majority vote, to reverse regulations issued near the end of a previous administration’s term. It has a potent kicker. Once revised or eliminated, the agency is precluded from issuing similar regulations in the future. “I think the CRA is path Number 1,” says Batkins.

The Congressional Research Service (CRS) has estimated that the Obama administration’s final rules submitted to Congress after June 13, 2016, will be subject to the congressional review period in 2017 by the new president and Congress.

“The CRA is, by definition, limited temporarily in two directions,” says William J. Snape III, assistant dean of Adjunct Faculty Affairs and a fellow in environmental law at American University Washington College of Law. “It only applies to rules finalized after [June 13, 2016], and members of Congress only get 60 legislative days to review them.”

One of the rules being discussed as a top CRA candidate is the Stream Protection Rule to the Surface Mining Control and Reclamation Act. It requires coal mining companies to minimize the effects of mining on surface water, groundwater, and wildlife by reducing debris and waste. The rule, loathed by coal companies, was published in December and finalized inauguration week.

Another group of regulations likely destined for the chopping block is currently pending in the courts. The most prominent is EPA’s Clean Power Plan rules, which are pending before the U.S. Court of Appeals for the District of Columbia Circuit. A decision is expected soon on the regulations, which would mandate a 32 percent cut in the power sector’s carbon emissions by 2030. The Trump administration could ask the court to remand the case back to the agency, or it could fail to go forward with an appeal on the case once the court issues its decision.

Similarly, the courts are deciding the legitimacy of a rule that redefines EPA’s jurisdiction under the Clean Water Act, making wetlands, ponds, and other small waterways subject to federal rules. Another likely target is EPA’s 2015 rule limiting ground-level ozone, which is being challenged now in the D.C. Circuit.

In the short term, Trump also can use presidential managerial powers to halt or slow regulations. The Trump administration, with the help of Congress, can delay implementation and enforcement of rules by changing policy and budget priorities. “There are a lot of programs that fly underneath the radar screen,” says David Hunter, a law professor at Washington College of Law. “Cut the funding and you’ve pretty much cut the enforcement of the rule or the program.”

Moving beyond immediate measures, there is a surplus of reversal opportunities but they require some heavy lifting. “The things that are issued in the form of binding regulations or legislative regulations are much harder to reverse,” says Robert L. Glicksman, the J. B. and Maurice C. Shapiro Professor of Environmental Law at The George Washington University Law School and a member scholar at the Center for Progressive Reform. “If the EPA issues regulations to control greenhouse gas emissions, the administration must go through the entire notice and comment rulemaking process to reverse those regulations. It can take years to undo rulemaking that complies with the Administrative Procedures Act (APA).”

The APA’s notice and comment process requires a federal agency to provide the public with notice of a proposed rulemaking and an opportunity to comment on the rule. Any reversal strategy would require the administration to justify the change, and it would likely end up in court. Observers say this might be the path for the Trump administration on critical regulations such as EPA’s endangerment finding that greenhouse gases are an air pollutant and must be regulated under the Clean Air Act.

A more permanent rulemaking overhaul is an effort by congressional Republicans to take apart the APA. On January 11 the House of Representatives passed 238–183 the Regulatory Accountability Act of 2017, which rolled together a series of bills that would radically revise administrative law, making it more difficult to adopt so-called high-impact new regulations by focusing more on the cost than on their health and safety benefits. The package would also repeal the Chevron doctrine, which has mandated that the courts defer to agencies’ interpretations in deciding cases when congressional statutes are ambiguous.

“If it were to pass both houses and be signed by President Trump, it would make administrative law going forward almost unrecognizable to where it’s been over the last 70 years,” says Glicksman.