Repealing environmental and safety rules: Ronald Reagan’s legacy will make it tough for Trump 

Our 40th President, Ronald Reagan was a deregulator. He saw deregulation as the answer to the economic stagnation of the times. “Government is not a solution to our problem,” he said in 1980. “Government is the problem.” 

Reagan’s program of 27 years ago may sound similar to that of President Donald Trump. He too seeks broad deregulation. His argument is to free American business from what he sees as unnecessary government restraints. 

But Reagan left Trump a daunting roadblock to his goal of rolling back the environmental, consumer protection and worker safety rules enacted by his Democratic and Republican predecessors. 

In pursuit of his plan President TrumpDonald John TrumpLieu: There will be 'widespread civil unrest' if Trump fires Mueller Attorneys for Trump, Mueller hold face-to-face meeting to discuss potential interview topics: report Trump tariffs not helpful for nuclear talks, South Korea says MORE has, in his first seven months in office, pushed the limits of executive power, utilizing unilateral action or executive orders to impose new limits on environmental, worker and consumer safety rules. In addition, the Trump administration has even issued a sweeping executive order requiring that any federal agency proposing to issue any new regulation, such as standards for safer development of driverless cars, or borrower protections for student loans, must revoke two existing rules before proceeding with such a new rule. 

President Trump’s plan to rescind or delay protective regulations enacted by previous administrations took a modest hit last week. Sixteen state attorneys general filed a lawsuit to end a delay by the Environmental Protection Agency in the effective date of ozone rules that would limit the discharge of smog- producing air pollutants. 

EPA Administrator Scott Pruitt announced he would not enforce the previously announced delay but would instead “negotiate” with the 16 suing states. The retreat may have been based on a regulatory roadblock created during the Reagan administration, a precedent that remains the law today regarding attempted repeals or delays of existing federal regulations.

Thus in attempting to impose any rescinding or delaying requirement on an existing or issued but not yet final rule, the Trump administration will come up against the Reagan “legacy,” often a very high hurdle.

Over two decades ago President Reagan attempted to implement his deregulatory policy by repealing the major automobile safety rule of the Carter administration; the passive restraint or airbag mandate. It was issued by the Department of Transportation in 1970. The air bag rule was supported by consumer groups and most of the insurance industry but opposed by most automobile manufacturers.

Reagan failed in his attempt to rescind the existing rule. State Farm Insurance Company and allied consumer groups brought suit to block the rescission. The case made its way to the U.S. Supreme Court which, in 1983, issued a landmark decision. It held that an administration cannot simply discard an existing rule. It must demonstrate adequate facts and reasoning to support its decision.  Justice Byron White wrote the opinion for the Court. It held that reversal of an existing rule by a federal agency may not be “arbitrary or capricious;” that an agency must furnish an “adequate basis and explanation” for its action.

The Court found that the Reagan administration and its Department of Transportation had failed to do this regarding the airbag safety mandate, even though it had compiled a rulemaking record thousands of pages long, extending back a decade.  

The opinion established a new “hard look” doctrine to define what that means, thus, requiring the judiciary to closely examine efforts to reverse existing agency rules.  

The case, Motor Vehicle Manufacturers v. State Farm Insurance, remains law today. It has been followed or cited in over 500 subsequent decisions.  

The “hard look” doctrine has been relied on by the federal courts to review agency rules on such issues as the definition of protected wetlands, workplace safety, limiting exposure to blood borne pathogens and regulations setting air quality standards under the National Environmental Policy Act. The doctrine does not always result in upholding federal environment and safety rules. But it generally has that result.

A president can, of course, formulate fact-based reasons for eliminating a regulation and explain their applicability to the particular rule. In fact, President Reagan might have done that with the air bag rule. The White House staff and the Office of Management and Budget strongly urged that course of action. But a new secretary of Transportation, Elizabeth Dole had just taken over. She had other ideas. 

Years later, Dole told me she “had always had a passion for consumer and worker safety”. She proceeded to convinced Reagan to allow the air bag rule to go forward, provided two thirds of the states did not pass mandatory seat belt laws. The required number of states failed to do that and the air bag rule was not rescinded.

Air bags have saved over 70,000 lives in the decades since and continue to save 2,500 people a year. The “hard look” doctrine is now uniformly applied; particularly when there is an administrative record complied by the agency, with public comment. And it surely applies to rescission of existing rules, such as the Trump administration is proposing.

Thanks to President Reagan it will take substantial effort and hard evidence to overturn existing safety, environmental and consumer protection rules. 

Michael R. Lemov was counsel to the House Commerce and Banking Committees. He is the author of “People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights” (Fairleigh Dickenson University Press, 2011) and “Car Safety Wars: 100 Years of Technology, Politics and Death”, (Fairleigh Dickinson University Press, 2015).      

The views expressed by this author are their own and are not the views of The Hill.