Stealth repeal: Trump's strategy to roll back regulations through delay
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It’s no secret that the Trump administration would like to undo as much of Obama’s environmental legacy as possible by rescinding or repealing regulations. Under the law, that process is difficult, but Trump’s agency heads now seem to be looking for an easy way to undo rules without officially rescinding or repealing them. Courts have rejected this kind of behavior in the past. Let’s hope they do so this time too.

To repeal a rule, a federal agency must analyze the evidence that supported the initial rule as well as any new evidence, explain how that evidence now supports a repeal, and take comments from the public — a time-consuming process. Courts have required agencies to go through a similar process before suspending compliance deadlines — precisely because postponing deadlines can be similar to a repeal. In addition, courts have required agencies to justify the postponement under strict standards.

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Trump’s agency heads are flouting these requirements. For example, the Environmental Protection Agency (EPA) recently delayed the compliance deadlines for a rule that restricts power plant discharges of arsenic and mercury in wastewater. EPA plans to keep the delay in place as long as it is reconsidering the rule, but did not indicate that it plans to complete the reconsideration process by any particular date. In other words, absent judicial intervention, EPA could just sit on the rule indefinitely. The law is clear: EPA has to ask the public what it thinks and take those comments into account before suspending a rule in this way.

 

To make matters worse, in postponing the wastewater rule, EPA also violated other important provisions of administrative law. The rule was already in effect and, under the Administrative Procedure Act, this kind of delay, even if time limited, is allowed only before a rule goes into effect. In addition, EPA claimed that a delay was needed because of legal challenges to the rule, but then failed to explain how the delay was justified under the strict standard that applies to those types of postponements.

In another particularly egregious case, the Department of the Interior indefinitely postponed compliance deadlines for a 2016 rule that had reformed the royalty payments for coal, oil, and gas extracted on federal land.

This 2016 reform sought to close a loophole that costs $70 million a year in royalties, split between federal government and the states. If this revenue were actually collected, it would fund schools, road construction, and municipal budgets. The postponement put off all compliance deadlines for as long as litigation over the rule lasts, though EPA has also successfully gotten that litigation postponed on the ground that Interior is considering repealing the rule.

Just like with the mercury and arsenic regulation, Interior did not get the public’s input before postponing the deadlines, improperly postponed the deadlines even though the reform was already in effect, and did not explain how the postponement was justified under the strict standard that applies to these postponements. California and New Mexico recently sued Interior for this illegal postponement.

EPA has taken questionable steps to delay other rules as well. The agency recently postponed the deadlines in a Clean Air Act rule that updated chemical accident prevention rules at manufacturing plants, issued after a fatal explosion at a fertilizer plant in West Texas. Before the rule could come into force, EPA issued a three-month postponement — without soliciting the public’s input.  EPA has now decided to seek public comment on a further two-year postponement while it reconsiders the rule — a time period that is much longer than the three-month limit imposed by the Clean Air Act.

Even if such a long delay is legally permissible, and that is doubtful, EPA should not be allowed to suspend the regulation indefinitely until after it considers and reviews the public’s comments. Stated differently, soliciting comments on whether to continue a postponement is not a substitute for taking comments on the initial postponement decision.

We have been here before. In the 1980s, the Reagan administration tried to delay several agency rules without asking the public to comment on the postponements. Both then and now, agencies were effectively repealing rules by postponing them indefinitely. Reagan’s use of this invalid procedure was roundly rejected in the courts.

Federal agencies are not supposed to waste resources by issuing rules and then undoing this work on a whim, without consulting the public on the wisdom of the change. This bedrock principle of American administrative law provides an important check on agency over-reach. The current White House has said federal agencies are “out of control,” so it is somewhat ironic that these agencies are flouting the law in undoing Obama-era regulations. The courts should not allow this effort to succeed.

Bethany A. Davis Noll is a senior attorney at the Institute for Policy Integrity at NYU School of Law, and a former Assistant Solicitor General in the New York Attorney General’s Office.


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