POTUS, SCOTUS & WOTUS: What Do They Have in Common With Michael Stipe and Jack Black?

Posted on March 15, 2017 by Jeff Thaler

Then-candidate Donald Trump’s unauthorized use of REM’s 1987 song, “It’s the End of the World as We Know It (And I Feel Fine)”, during a 2015 campaign rally sparked a sharp objection by the band’s Michael Stipe. Flash forward to 2017 and now-President Trump has been flexing his executive powers in a number of legal fields; for many environmental, energy or immigration lawyers it’s the end of the regulatory world as we knew it for decades, and they are not feeling so fine.

Executive Orders (EOs) raise classic constitutional law issues of the separation of powers, in that they often are used for “executive legislating” even though there is no explicit constitutional authority for them. EOs also blur traditional regulating lines, because they are not issued with public notice or comment, and usually state that they do not “create any right or benefit enforceable at law or in equity by any party against the United States.”

An EO can have the force of law, however, if the EO is based on either the Constitution or a statute, per the Supreme Court’s 1954 Youngstown decision. That is why one must carefully read each EO to determine the grounds of its authority, and then whether it is possibly contrary to a) existing laws or b) constitutional provisions such as due process or equal protection.

Facing an uncooperative Congress, POTUS Obama came to rely on EOs in his last two years in office (see this prophetic 2015 School House Rock episode). POTUS Trump took to EOs right out of the gate. The two Trump EOs that have garnered the most publicity and outcry deal with immigration restrictions The first EO was challenged in numerous courts, and the 9th Circuit issued on February 9 the first appellate decision on a Trump EO. Interestingly, and instructive for future litigants and legal counsel, the first issue addressed by the 9th Circuit, and the one they discussed the most, was . . . standing. The court then moved on to reviewability, and only briefly due process and equal protection. The complaint’s count on violating the Administrative Procedure Act for not following proper rulemaking proceedings was not even discussed in the ruling.

Trump issued two EOs of more relevance to environmental and energy lawyers. First was the January 30, 2017 EO entitled “Reducing Regulation and Controlling Regulatory Costs”, aka the add-one-subtract-two, no-increase-in-incremental-costs [undefined]- of-regulations EO. That was followed by the February 2, 2017 Interim Guidance of the OMB implementing (and implicitly amending) the EO by limiting it to “significant regulatory actions”—i.e. those of $100 million or more of annual effect on the economy. A week later the EO and IG were both challenged in federal court in D.C. as violating the APA, separation of powers, the Constitution’s “Take Care Clause”, and as being ultra vires. Plaintiffs referenced in part OSHA, TSCA, the ESA and CAA, and other energy/environmental laws as being inconsistent with the EO’s requirement that a new rule can only be promulgated if its cost is offset by the elimination of two existing rules. The EO ironically signals the possible demise of cost-benefit analysis —first mandated by then POTUS Ronald Reagan by an EO in 1981—by disallowing consideration of the economic benefits of a regulation when weighing its costs.

Many more EOs are promised in the coming weeks concerning a variety of environmental and energy laws and regulations. Early in the wave was the February 28, 2017 EO with the majestic name of “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ [aka WOTUS] Rule”. This EO directs the EPA to review the WOTUS Rule while keeping in mind the national interest of “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” Since WOTUS was a final rule published in the Federal Register, it can only be repealed and replaced by a new rule that goes through full notice-and-comment rulemaking, not simply by a non-legislative guidance or policy statement.

One who lives by the EO sword can slowly die from it too. POTUS Obama did not submit for approval to Congress the Paris Climate Change Agreement of 2016, calling it an “executive agreement”, thus POTUS Trump does not need Congressional approval to undo it. The Agreement terms do not allow withdrawal by a party before November 2019. However, the U.S. could withdraw from the overarching United Nations Framework on Climate Change with one year notice, if the Senate approves, and that in effect would undo our Paris “commitments”. And as a practical matter, the current Administration could also just choose not to implement the Paris obligations, because there is no binding duty to hit the emission reduction targets.

In sum, we live in interesting times.   Although Jack Black has said of this Administration that “It’s the end of the world”, for College members and their clients it’s the start of some fascinating new adventures in regulation and litigation. Stay tuned. 

IS PRESIDENT TRUMP REPEATING REAGAN’S MISSTEPS ON REGULATORY “REFORM”?

Posted on February 8, 2017 by Robert Percival

President Donald Trump’s first weeks in office have seemed like a reality TV show highlighted by frequent signing ceremonies for hastily-drafted executive orders.  One of these orders, signed on January 30, is entitled “Reducing Regulation and Controlling Regulatory Costs” (Executive Order 13771).   President Trump described it as mandating “the largest cut by far, ever in terms of regulation” and the key to “cutting regulations massively” for businesses. The order requires federal agencies to repeal two existing regulations for each new regulation they issue and it gives each agency a regulatory budget of zero for the imposition of aggregate costs on industry during the current fiscal year. 

The words “cost” or “costs” appear 18 times in the executive order; entirely missing from it is any discussion of the benefits of regulation.  By focusing solely on reducing the costs of regulation, President Trump is repeating a crucial mistake the Reagan administration made after launching a major “regulatory reform” initiative in 1981.  President Reagan’s Executive Order 12291 created a new system of regulatory review centered in the Office of Management and Budget (OMB).  It mandated that federal agencies perform cost/benefit analyses to support any major rule likely to cost more than $100 million annually.  Subsequent Presidents of both parties have retained this requirement and the centralization of regulatory review in OMB’s Office of Information and Regulatory Affairs.

Unlike Trump’s executive order, Reagan’s order directed federal agencies to consider both the costs and benefits of regulation.  It specified that such agencies should seek to maximize net benefits to society and to issue regulations only when their potential benefits outweighed their potential costs.  However, the Reagan administration undermined these directives by maintaining that costs and benefits need not be weighed when an agency proposed to repeal a regulation.  This contributed to a disastrous effort to repeal limits on the amount of lead additives that could be used in gasoline.

At the direction of Reagan’s Task Force on Regulatory Relief, EPA proposed to repeal the lead limits that had been sustained in the D.C. Circuit’s historic, en banc decision in Ethyl Corporation v. EPA.  While this would have saved oil refiners a small amount of money, it would have dramatically increased lead poisoning, costing society far more.  Yet, despite the Reagan administration’s new emphasis on cost/benefit analysis, no cost/benefit analysis was performed because EPA was proposing to repeal a regulation.

The rulemaking to abolish limits on lead in gasoline spawned such a firestorm of opposition, even from conservative columnist George Will, that the Reagan administration was forced instead to strengthen the regulation.  Three years later, after William Ruckelhaus had returned to lead EPA, the agency performed a cost/benefit analysis of phasing lead out of gasoline entirely.  After the analysis found overwhelming net benefits from banning leaded gasoline, EPA did so. Today nearly every country in the world has followed the U.S. in banning leaded gasoline, dramatically reducing lead poisoning.  Economists estimate that lead phase-out now generates more than two trillion dollars per year in net benefits globally. 

Under President Trump’s new executive order, federal agencies must repeal two rules, regardless of their benefits, in order to take any new regulatory action.  And the costs of the new regulation must be offset by the reduced costs from repealing existing rules. Thus, if EPA wants to strengthen regulations on lead in drinking water to protect people like the residents of Flint, Michigan, Trump’s executive order requires it to repeal two existing rules, for example (god forbid) by no longer prohibiting oil refiners from adding lead to gasoline. 

President Trump’s executive order has legal qualifiers that offer some hope.  It purports not to “impair or otherwise affect” agencies’ existing legal authority and it requires federal agencies to comply with the Administrative Procedure Act (APA) when repealing rules.  The APA’s judicial review provisions direct courts to strike down agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  If an agency’s only justification for repealing a rule is to comply with President Trump’s new directive, it should be possible to convince a reviewing court that the action is arbitrary enough to be struck down. 

President Reagan’s efforts to relax environmental regulation generated a backlash in Congress, which responded by greatly strengthening the environmental laws and adding numerous deadlines for EPA action.  But that was because Congress then was controlled by lawmakers who cared about environmental protection.  Today’s Congress is controlled by lawmakers who regularly campaign against EPA regulations.  Regulations that are outmoded, ineffective, or excessively burdensome should be repealed, as President Obama directed in 2011 when he issued Executive Order 13563.   But President Trump’s poorly drafted Executive Order 13771 opens the door to repealing long-established protections for public health, safety and the environment without consideration of the enormous benefits they produce.