President Elect Trump has vowed to unwind regulations which he believes are dramatically constraining economic growth. The Obama Administration’s environmental regulations are specifically being targeted, including: the Clean Power Plan, the Waters of the U.S. Rule and ozone regulations. His transition web-page even touts that for every one new regulation enacted his Administration will remove two old regulations.
Billionaire investor Carl Ichan was given the position of Special Adviser on Regulatory Issues. As reported on CNBC, Mr. Ichan said this about government regulation when his new position was announced:
"Under President Obama, America’s business owners have been crippled by over $1 trillion in new regulations….It’s time to break free of excessive regulation and let our entrepreneurs do what they do best: create jobs and support communities."
But just how quickly can the Trump Administration unwind environmental regulations? What tools does the Administration have at its disposal to reduce or eliminate environmental regulation?
Federal Rulemaking Process
The rulemaking procedures for federal agencies, including U.S. EPA, are governed by the Administrative Procedures Act (APA). While the APA imposes a formal process for adoption of new rules that naturally slows the pace of federal rulemaking, it also imposes restrictions on the ability to either remove existing regulations as well as stop regulations once they are in process.
The APA (5 U.S.C. Section 553) requires a four step rulemaking process:
- Issue a notice of proposed rulemaking;
- Receiving comments on the proposed rule;
- Issue a final rule; and
- Setting an effective date at least 30 days after publication of the final rule n the Federal Register.
Once a rule has completed this four step process, it becomes much more difficult to remove or prevent the rule from going into effect. Below are some of the administrative, legislative and legal strategies the Trump Administration may employ to reduce and/or eliminate environmental regulation.
Executive Order to Stop Regulations in Process
On the first day of office, President Trump can have a memorandum issued directing all federal agencies, including the U.S. EPA, to freeze current rule making efforts. Similar memorandums were issued on the first day by Bush and the Obama Administrations. But the APA has limits on the authority to derail current rulemaking efforts.
A similar memorandum was issued on January 20, 2001, by Andrew Card, President Bush’s Chief of Staff. See, 66 Fed. Reg. 7702 (Jan. 24, 2001) The memo directed executive agencies to withdraw rules not yet published and to postpone the effective dates of public regulations. However, prior Court precedent forced agencies to go through proper APA procedures prior to withdrawing or delaying rules.
In Natural Resources Defense Council, Inc. v. EPA, 683 F.3d 752 (3d Cir. 1982) the Court specifically addressed whether indefinite postponement of an EPA rule would violate the APA. At issue was an EPA rule that had completed the four-step APA process with an effective date. An Executive Order was issued to suspend the effective date of certain rules to reconsider the costs and benefits of the new rule. The Court held that such a postponement was tantamount to rulemaking itself and the four step APA process would need to be completed to delay the effective date of the rule.
A GAO study showed that the Card memorandum resulted in the delay of the effective date of 90 rules and 15 rules still had not gone effective after one year from the date of issuance of the memorandum. See, U.S. General Accounting Office, GAO-02-370R, Feb. 15, 2002.
While the Trump Administration can delay rules in process, past precedent shows that executive authority to stop a rule in process is does have constraints.
Slow the Pace of New EPA Regulations
The Trump Administration can also direct U.S. EPA to be cautious in adopting any new regulations. Certainly the new Administration can reduce the number of newly adopted regulations. A similar action was taken by President Reagan through his Executive Order 12291. The Order enacted on February 17, 1981, required all agencies perform a "Regulatory Impact Analysis" to determine if the "potential benefits to society for the regulation outweigh the potential costs to society" and the rule with the "least net cost to society" shall be enacted.
President Reagan order did reduce the number of new regulations adopted during his Presidency. However, such an Executive Order cannot prevent all new rulemaking, in particular with regard to U.S. EPA that is statutorily required to adopt certain regulations.
In fact, environmental groups often sue U.S. EPA to force adoption of new regulations. Such suits were common during the Bush Administration. Environmental statutes, such as the Clean Air Act and Clean Water Act, contain citizen suit provisions that authorize third parties to compel an agency to perform a mandatory act under those statutes. See, Clean Air Act, 42 U.S.C. Section 7604(a)(2) and Clean Water Act, 33 U.S.C. Section 1365(a)(2).
However, litigation takes time. Even if Courts agree and order the U.S. EPA to adopt statutorily mandated regulations, the Trump Administration will have the power to slow pace of newly adopted EPA regulations.
The Congressional Review Act (CRA- 5 U.S.C. Section 801-808) requires federal agencies to submit rules to Congress for review. Under the CRA, Congress has the ability to revoke rules through a special joint resolution during the 60 day period following the rules submission to Congress.
While the CRA could be used to revoke rules enacted at the end of the Obama Administration, the process to adopt a special joint resolution is required for each rule to be rescinded. Therefore, the process is time consuming.
As discussed in Forbes, another option is to pass legislation such as the RED Tap Act (S. 1944), which would require elimination of one rule for every new rule enacted.
Current Litigation Involving Obama Administration EPA Rules
Challenges to two of the Obama Administration’s signature environmental rules- the Clean Power Plan and the Waters of U.S..- are still pending in the Courts. The Trump Administration could simply not put on a strong defense to rules currently being challenged. If the Court invalidates a rule, then the Trump Administration could simply choose not to enact the rule.
Authority to Repeal Existing EPA Regulations
While the ability to delay or revoke rules in process is important, what authority does the Administration have to revoke rules that are currently in place. Previous Administrations have learned, typically through the courts, that Presidential powers to revoke existing rules is limited. An existing regulation can only be amended or repealed if the four step APA rulemaking process is followed. Furthermore, the APA requires the Administration to not act "arbitrary" or "capricious" in revoking or amending a rule. In other words, the Agency must justify its change in position. See, FCC V. Fox Television Stations, Inc., 556 U.S. 502 (2009).
A good example of the limits on the ability to revoke prior enacted rules is the Tongass National forest exemption to the U.S. Department of Agriculture’s "Roadless Rule" which limited road construction and timber harvesting in national forests. The Roadless Rule was promulgated under President Clinton. President Bush created an exemption to the rule that was challenged in Court as arbitrary and capricious under the APA. After years’ of litigation, the Ninth Circuit Court of Appeal overturned the exemption stating the Agency provided insufficient justification for its change in policy. See, Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015)
Clearly, the Trump Administration can slow down the regulatory rulemaking process. It can also choose not to defend rules currently being challenged in the Courts. However, under the APA, the Administration cannot simply revoke existing rules without sufficient technical and legal justification.