ALERT: The Trump Administration’s Second Week

The Trump Administration’s second week was somewhat calmer as to its environmental agenda. Nevertheless, there were some important developments.

The administration took aim at the number of regulations issued by executive agencies, issuing an Executive Order, Reducing Regulation and Controlling Regulatory Costs, on January 30, 2017. Dubbed the “One In, Two Out” Order, it essentially requires that, unless prohibited by law, the agency identify two existing regulations to be repealed when it publicly proposes a new regulation. The environmental statues do not contain a specific provision that explicitly prohibits this practice. As a result, EPA should be subject to this order during its rule-makings. However, many of the regulations issued by EPA are based on, or otherwise required by, the environmental statutes. It may be prove difficult for EPA to repeal two regulations when issuing a rule that is required by an environmental statute, as those to-be-repealed regulations may be required by a statute. The order should, however, inhibit or curtail discretionary rule-makings and promote the repeal of other discretionary rule-makings.

The order goes beyond the number of regulations issued and repealed. First, it requires that the total incremental cost of all new regulations, including repealed regulations, shall be no greater than zero. The Director of the Office of Management and Budget will provide guidance to all agencies that will include, among other things, “processes for standardizing the measurement and estimation of regulatory costs.”  This could possibly be a veiled reference to curtailing EPA’s use of ‘co-benefits’ and the Social Cost of Carbon to inflate the monetary benefits of its rules. Second, all agencies are prevented from issuing any regulation “if it was not included on the most recent version or update of the published Unified Regulatory Agenda.”

It’s not just the Trump Administration targeting rules. Congress is also getting involved by suggesting the use of the Congressional Review Act. (For more on the Congressional Review Act, see The hurdles of Trump’s EPA.)  Generally, the CRA allows Congress to block a regulation from becoming effective, if the President signs a joint resolution of disapproval passed by Congress. Congress must act within a certain number of legislative days from receiving a report from the agency regarding the new rule. The Congressional Research Service issued a report on December 15, 2016 stating that the deadline for such review would apply to rules submitted on or after June 13, 2016.

However, another feature of the CRA is that a rule does not take effect until a report about the rule is sent to Congress. See 5 USCA 801(a): “Before a rule can take effect, the Federal agency … shall submit to … Congress … a report.”  There were some recent news reports that EPA may not have submitted reports for every rule over the last eight years. Under the CRA, this means that the rule never took effect. It is unknown which rules, if any, this may effect.

In all, another interesting week with more to come. Stay tuned!

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