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Remember four years ago when newly elected President Trump promised to dramatically reduce Obama-era environmental regulations?  President Trump vowed to eliminate two existing regulations for every newly adopted regulation.  The Trump Administration argued that Obama era regulations added $1 trillion in additional costs on businesses.

However, what President Trump and many in the business community quickly learned is that it is much more difficult to undo regulations once they are on the books.  Perhaps the best example is the Waters of the United States (WOTUS) Regulation adopted by Obama Administration defining federal jurisdiction over wetlands and streams.  While President Trump immediately signed an executive order stating the Administration’s intention to rescind WOTUS, it took 3 1/2 years to revoke WOTUS and replace it with the Navigable Waters Protection Rule.

Now that the pendulum has swung back in favor of more regulation to protect the environment, the Biden Administration is likely to learn the same lessons.  While the Biden Administration may strongly dislike many of the regulations adopted by the Trump Administration, the Biden Administration will feel the same constraints on its ability to quickly unwind regulations.

APA- Process to Remove/Replace Existing Regulations

Older regulations must be revoked using the Administrative Procedure Act (APA), 5 U.S.C. Section 553,  which requires the following:

  • Proposed rule to revoke the adopted regulation:
  • A public comment period;
  • Final rule revoking the regulation;
  • Proposed rule adopting the new regulation (if there is to be a replacement);
  • A public comment period; and
  • Final rule adopting the new regulation

This the process the Trump Administration followed to unwind WOTUS and replace it with the Navigable Waters Protection Rule that took 3 1/2 yeas to complete.  Now, the legality of Navigable Waters Protection Rule is being challenged in a number of federal courts.

Congressional Review Act

Regulations adopted in the final months of the Administration are more vulnerable.  Perhaps the most powerful tool to unwind such regulations is the Congressional Review Act (CRA- 5 U.S.C. Section 801-808).  The CRA requires federal agencies to submit rules to Congress for review.  Under the CRA, Congress has the ability to revoke rules through a special joint resolution during the 60 day period following the rules submission to Congress.

While the CRA could be used to revoke rules enacted at the end of the Trump Administration, the process to adopt a special joint resolution is required for each rule to be rescinded.  Therefore, the process is time consuming.  The Republican controlled Congress in the first year of the Trump Presidency, used the CRA to revoke sixteen (16) Obama regulations.

Any Trump-era rules finalized after August 21, 2020 could be revoked using the CRA process.  With Democrat control of both the House and Senate, it is likely the CRA will be used to revoke some Trump-era environmental rules. The two most likely Trump-era environmental regulations that may be targeted by the CRA are the following:

  • Clean Air Act Cost-Benefit Analysis-  This controversial rule established procedural requirements, termed a benefit-cost analyses (BCA), governing the preparation, development, presentation, and consideration of the benefits and costs of new Clean Air Act regulations.  One purpose of the rule was to eliminate consideration of co-benefits associated with a new regulation.  New emission standards for a specific pollutant require new air pollution controls (targeted pollutants).  The new air pollution controls would also result in reductions in pollutants the regulation did not specifically target (non-targeted pollutants). Historically, EPA would consider benefits from reductions in both targeted and non-targeted pollutants.   The BCA was meant to prevent consideration of such co-benefits.  Removing consideration of co-benefits will make stricter regulations harder to justify.
  • Restriction on Relying on Scientific Studies with Non-Public Data-  This highly controversial rule prohibits the EPA from considering results from studies if the underlying data cannot be made publicly available.  Many health studies rely on confidential health data.  This Trump Administration rule prohibits EPA from relying on any study that relies on non-public data to justify new regulation.  Prior to the Trump Administration, EPA would rely on health studies with confidential health data to justify new federal air pollution standards or restrictions on emissions.  This regulation was also designed to make it more difficult to justify stricter regulations and pollutant standards.

The clock is already ticking on the ability to use the CRA.  We will see shortly how the Democrat controlled Congress elects to strategically use the CRA to unwind Trump-era regulations, including the two highly controversial regulations discussed above.