The hurdles for Trump’s EPA

The new Trump administration has made repeated statements regarding overly burdensome environmental regulations. For example, in his “Contract with the American Voter,” Trump pledged to lift restrictions on the production of energy reserves — including shale, oil, natural gas and clean coal — and allow the Keystone Pipeline to move forward. There have also been numerous statements regarding the repeal — in whole or in part — of existing regulations, such as the Clean Power Plan.

Obviously, these new policies are a dramatic shift from those of the Obama administration. Environmental groups have taken note and have vowed to take action to preserve current rules. One group announced a strategy to oppose actions taken by Trump’s EPA that are discretionary in nature while suing to force actions on nondiscretionary requirements mandated under the various environmental statutes. An example of the former is a rollback of the Clean Power Plan, and an example of the latter is suing the EPA to force the promulgation of certain rules by the date set out in the statute.

In terms of discretionary rule changes, there are some roadblocks for the Trump administration. The repeal or revision of existing rules and the promulgation of new rules must follow the federal Administrative Procedure Act, which requires an agency to allow comment on a proposed rule and respond to comments before issuing a final rule. Further, an agency’s final decision on the rule is subject to judicial review. As a result, any attempt to scale back existing rules will be met with comments in the rulemaking process and litigation over the scaled-back rule. While comments and litigation may not be avoided, the agency will have to provide a sound basis for the revision that will survive judicial review.

Failing to follow nondiscretionary actions in the various statutes may present problems for the Trump administration. Over the years, there have been many successful suits in which judgments or orders were obtained mandating the EPA perform a specific nondiscretionary duty. It is almost certain these types of suits will continue. To avoid this result, the actual statute would need to be amended to change a nondiscretionary duty to a discretionary duty. For example, a provision stating the EPA “shall review” a standard every five years would be amended to state the EPA “may review” the standard based on its best judgment.

There are a few bills pending in Congress that will inhibit the promulgation of expensive rules. One is HR 26, the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017. Under this legislation, a major rule carrying costs of at least $100 million per year would require a “joint resolution of approval” from Congress to become effective.

Another is HR 5, the Regulatory Accountability Act of 2017. Usually, the courts give a great deal of deference to an agency’s interpretation of its own rules or a statute the agency has been tasked to administer, as long as the interpretation is reasonable. This deference has been the basis for upholding many of the EPA’s rules. Simply put, the legislation would remove the deference a court may give an agency in interpreting an ambiguous rule or statute. The Supreme Court has agreed to consider a case that puts before it the level of deference a court must give an agency’s interpretation of its own rules. Ironically, once the law is enacted, the Trump administration will no longer be able to rely on the same level of deference prior administrations have enjoyed.

In all, there will be some victories and some defeats for the Trump administration. Either way, it will likely be a litigious four years.

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