Regulation through litigation is wrong….
Hours after the swearing in ceremony, the White House released a directive to federal agencies ordering the withdrawal of all rules awaiting publication in the Federal Register and extending for 60 days the effective date of recently published regulations.
It is not unusual for an in-coming administration to postpone the release of lingering rules promulgated by a predecessor. Trump’s campaign promises and a recent statement by House majority leader Kevin McCarthy (R-CA) give a more ominous cast to an otherwise common practice, however.
McCarthy, in a Washington Post interview: criticized the volume of regulations under the Obama administration, adding that Congress will follow the Regulations from the Executive in Need of Scrutiny Act (REINS Act), which is designed to keep regulations and their costs down by forcing all new major regulations to be approved by Congress. How McCarthy’s claim will be implemented is unclear—his intention is not.
Although President Trump has yet to issue a blanket order cancelling all extant executive directives, Friday’s directive could freeze several new energy related standards, e.g. on uninterruptible power supplies; these were issued at the end of December but are unpublished in the Register.
Mr. Trump promised business leaders on his first full day in the Oval office that his administration intended reducing federal regulations by seventy-five percent. Evidently this was as surprising to the President as it was to others:
A bigger thing, and that surprised me, is the fact that we are going to be cutting regulation massively. Now we are going
to have regulation and it will be just as strong and just as good and just as protective of the people as the regulation we have right now.
Meeting with automakers on the second day in office, Trump used the occasion to repeat his intention to rescind major environmental rules. Adding to the gravitas of the situation were other announcements freezing contract activities at EPA and ordering a media blackout for other climate related offices, e.g. the Agricultural Research Service.
Like It Or Not
We are a nation of rules. How rules are crafted and implemented impacts everything from human health to trademark protection and the free flow of goods and services across state and national boundaries. When the system bogs down, so too does government.
The purported purpose of the reforms, introduced by Republican sponsors in Congress and the rescissions promised by the President, is to lighten the burden on business and pave the way for American producers to produce--bigly. The actual impact of the proposed actions may turn out to be something quite different.
OMB has predicted the REINS Act alone would replace a well-established frame-work with a blanket requirement of Congressional approval… throw[ing] all major regulations into…limbo. Given the combination of executive orders, recently proposed reform legislation, e.g., the RAA and agency-centric culling of existing rules, OMB’s estimate of limbo-time may be optimistic.
The breadth of the promised reforms and the number of regulations targeted creates numerous choke points. Knots that can only be undone by the courts or the passage of additional legislation. Either could take years.
In the following paragraphs, I will be focusing on the inevitability of legal challenges and what their basis may be.
So Sue Me
Plaintiffs are already lining up outside courthouses in America to bring environmental/energy law suits against the Trump administration. The asked for remedies will be varied and wide-ranging--from whether the EPA Administrator—once confirmed--must recuse himself from certain decisions to writs of mandamus, asking the court to order EPA to issue clean air regulations.
Add the prospect of dozens of new cases to the existing docket challenging EPA’s authority, and you have the legal equivalent of broken down cars in the Lincoln Tunnel at rush-hour--in all lanes and in both directions.
The same courts that just months ago were asked to halt issuance of clean air and water rules will now be asked to direct the Agency to issue them. Confusing and a bit perverse, isn’t it? In football this would be known as the double-reverse.
It actually gets stranger. Bear with me for a few more paragraphs.
Not all state and local jurisdictions were against EPA’s issuance of clean air regulations. In the West Virginia case, for example, over a dozen states and cities filed amicus briefs in support of the CPP. Other friend of the court filings were submitted by large environmental organizations like NRDC.
These groups and others have standing to sue through the Administrative Procedure Act (APA); it allows any interested person to petition a federal agency to make, change or repeal regulations. Several years ago, Massachusetts petitioned EPA asking them to set limits on greenhouse gas emissions from automobiles. EPA refused.
The case, Massachusetts v EPA, went all the way to the U.S. Supreme Court. In a narrow 5-4 decision, SCOTUS ruled: if the Agency found the public’s health and welfare were endangered, it was obligated to regulate CO2 emissions.
The decision meant that EPA had to determine if GHGs cause or contribute to air pollution and reasonably do harm to society. In 2009, EPA indeed declared that GHGs were an endangerment and put populations at risk. Perforce of the decision in the Massachusetts case, EPA was then obligated to regulate CO2 emissions.
The Massachusetts decision was used by the Obama administration as the trigger for the CPP. Enter AG Pruitt--stage left right, and potential conflicts begin to appear.
Pruitt is a leading lawyer in the West Virginia case questioning EPA’s authority in the matter of the CPP. Prior to this case, he had joined other attorneys general in the Coalition for Responsible Regulation. The Coalition unsuccessfully challenged EPA’s endangerment finding in the Massachusetts case.
The U.S. District Court of Appeals for the District of Columbia dismissed industry and state claims that EPA had overly relied on outside scientific bodies, i.e. the United Nations' Intergovernmental Panel on Climate Change.
The DC Court of Appeals is the same court whose decision was overturned by SCOTUS putting a hold on the CPP. The case was then sent back to the D.C. appellate court--where it now awaits an en banc decision before it is again appealed to SCOTUS.
Adding a bit more to the backstory. Justice Garland sits on the bench of the D.C. District Appellate Court. His nomination, by President Obama, to fill Justice Scalia’s seat was pigeon-holed by the Republican Senate and a major issue in the 2016 presidential elections. It should be noted that Justice Garland was not part of the en banc proceeding last September.
If the story were not already strange enough, the saga goes on. Once Pruitt becomes EPA Administrator, he will be in a positon to retract the endangerment finding made by EPA; a finding that SCOTUS had ruled appropriate and led to the CPP.
Marcus Peacock, a Deputy EPA administrator under President G. W. Bush, is on record saying:
It would be bold to undo the endangerment finding. You could do it. It would be difficult. It would take time.
Will Mr. Pruitt --as EPA Administrator—overturn the SCOTUS decision in the Massachusetts case? I don’t know.
It is not difficult, however, to anticipate that Mr. Pruitt’s prior involvement in cases challenging federal regulatory authorities and the EPA’s endangerment finding will raise the likelihood of legal challenges; actions that will inevitably choke the federal regulatory process until resolved.
The knot in the system will be tightened, as well, if a recent Axios report on the Trump Administration’s intentions towards the EPA is true. Based on an addendum to an EPA transition document, the Agency’s budget and powers are slated to be significantly curtailed going forward.
The beginning sentence of the document was:
EPA does not use science to guide regulatory policy as much as it uses regulatory policy to steer the science.
From this claim, flows the documents recommendations:
Trump’s administration is on record being dismissive of the findings. The President and his surrogates are suggesting bigly cuts in all federally supported scientific/climate-related research, e.g. NASA, the U.S. Department of Energy, the Agricultural Research Service and EPA.
The obvious question is: where does the evidence required for regulation come from? If from outside sources, what are the controls? Who’s going to pay for it? What if a proposed regulation requires research not being conducted by the private or university sectors? Does that mean no rule?
Traditionally the federal government—both the agencies and the Congress—have relied on and supported the research needed to regulate. If now EPA, DOE and other federal agencies must rely on the private sector, won’t this in and of itself create a conflict? If not a conflict, certainly a choke point.
I have written before asking the question what evidence and evidentiary proceedings would be acceptable arbiters in the eyes of deniers? The presumption of the Administration and Congressional reformers seems to conclude climate change is unimportant; and in any event, it gets in the way of business. Does this then endanger the health and welfare of society? What about the decisions in the Massachusetts case, by both the District Court of Appeals and SCOTUS, that CO2 does indeed endanger the health and welfare of society?
In the next installment of the series I will be discussing other choke points in the proposed regulatory reform structure, as well as problems associated with devolving primary energy/environment regulatory authority to the states.
Photo thanks to Pixabay
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.