President Donald Trump’s drive to roll back federal regulations, especially from the Environmental Protection Agency (EPA), will not be simple or smooth, a veteran Washington, D.C., attorney said at a utility conference on February 8.
Speaking at the Energy, Utility, and Environment Conference (EUEC) in San Diego, Calif., Thomas Lorenzen, a partner with D.C.–based law firm Crowell & Moring, told attendees that the roadblocks standing in the way of a rapid rollback are many and varied.
One of Trump’s signature moves, his January 30 executive order that requires two rules to be repealed for every new rule published, isn’t going to be anywhere near as simple as it might appear, Lorenzen said.
“It’s really going to depend on the enabling statutes,” he noted, since many regulations exist because of mandates from Congress. “Many of these laws have not been revised in decades.”
Without changes in the law, the administration’s hands are often tied.
“It’s not clear how effective this order is going to be,” he said, pointing out that withdrawing or revising an existing rule requires a new rulemaking process. “But is the deregulatory rule a new rule that requires two other rules to be repealed?” he asked.
So far, no one knows.
Litigation an Obstacle to Rulemaking
Lorenzen noted that the order has already been challenged in court, which is likely to further complicate matters. “Litigation is always an obstacle to rulemaking.”
Leaving aside the two-for-one order, Lorenzen explained that the process of rolling back existing rules is still going to be a long and involved process because of the requirements of the federal rulemaking process. Major changes to regulations that have the force of law require notice and comment periods, which take time. While exceptions exist, they are very narrow, he said.
Because of these challenges, Lorenzen predicted that the rollback would likely be substantially less ambitious than the president’s rhetoric has suggested. “Ninety-nine percent of existing rules won’t be touched,” he said. “It’s the big-ticket items they will be going after.”
Congress is also seeking to repeal some of the Obama administration’s most recent rules via the Congressional Review Act (CRA). Lorenzen pointed out that this is mostly uncharted territory, as the CRA has almost never been successful since any actions have to be signed by the president to take effect.
“The action on the Interior stream protection rule is only the second time it’s been used successfully.”
Other possible congressional actions include changing the law to eliminate what is known as “Chevron deference” (so named because of the case that established the rule) under which federal courts defer to agency interpretations of their own rules. It’s not clear why this effort is gaining traction right now, Lorenzen said, given that Republicans control both Congress and the presidency.
With respect to regulations that are currently tied up in court, Lorenzen noted that the administration’s options are somewhat limited. While the Department of Justice (DOJ) can ask the court to place the case in abeyance (meaning further actions are suspended while it reconsiders its posture), such motions are at the court’s discretion.
The DOJ could decline to further defend challenged regulations, but in those cases, courts usually allow other parties with standing, such as affected states, to step in and defend the rule.
Uncertainty Shrouds the Clean Power Plan
Because the lawsuit against the Clean Power Plan (CPP) has already been argued before the Court of Appeals for the D.C. Circuit, Lorenzen said it’s anyone’s guess what the court will do with the case.
Even if the CPP is upheld, the Trump EPA has options to limit its reach even before a new rule could be issued to rescind it. The EPA could also undo its endangerment finding on greenhouse gases under the Clean Air Act, which would remove the agency’s justification to regulate carbon dioxide (CO2). But doing so could carry with it some unintended consequences, Lorenzen said.
One of these stems from a recent case holding that nuisance suits against power plants for greenhouse gas emissions are barred because the EPA’s regulation of the issue preempts them.
“But if the EPA targets that endangerment finding and isn’t regulating CO2, could that then open up nuisance suits for CO2 emissions? I have no answer to that question,” he said.
Finally, Lorenzen warned that an approach that is too aggressive can sometimes backfire, a lesson the Obama administration learned when pushing too hard to stretch its statutory authority to enact new regulations. If Trump pushes too hard in the other direction, courts may start hitting the brakes.
“Pushing things too far can result in a series of adverse court decisions,” he noted. “And that can further and further tie the administration’s hands.”
The EPA was scheduled to send a senior official to EUEC to speak alongside Lorenzen, but the agency had to withdraw because of the administration’s recent restrictions on the agency’s communications with the public.
—Thomas W. Overton, JD is a POWER associate editor (@thomas_overton, @POWERmagazine).