Due to NEPA, Trump's 'One-In, Two-Out' Order Does Not Apply to Environmentally Protective Regulations

by Joel Mintz | March 11, 2019

This post is adapted from a recent law review article published in the University of Missouri—Kansas City Law Review.

In myriad ways – from speeches, favoritism toward polluting industries, and ill-advised regulatory rollbacks – the Trump administration has consistently exhibited unrestrained antagonism toward regulatory safeguards for health, safety, and the environment. One of the earliest manifestations of that antagonism – and arguably one of the most pernicious – was an executive order signed by the president only ten days after his term began.

Executive Order 13771, hereafter referred to as the "one-in, two-out" order, contained three directives to all federal departments and agencies. First, it provided that "unless prohibited by law, whenever an executive department or agency…publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed." Second, for fiscal year 2017, the president's order directed agency heads to ensure that the total incremental cost to regulated parties of all new final regulations be zero or less. And third, Executive Order 13771 decreed that any new incremental costs to the regulated community associated with new regulations be offset by eliminating existing costs associated with at least two prior regulations.

The president's one-in, two-out order made no attempt to account for, or even acknowledge, the public benefits associated with regulations to be repealed. Presumably, those benefits were not relevant to the regulatory revocations called for ...

From Surviving to Thriving -- The National Environmental Policy Act and Disasters

by Joel Mintz | September 21, 2018
This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report. Click here to read previously posted chapters. In August, 2017, Hurricanes Harvey and Irma brought widespread devastation to the southeastern United States, destroying buildings, flooding neighborhoods, and taking lives. Harvey shattered the national rainfall record for a single storm, dropping over 50 inches of rain in a 36-hour period. The Houston area suffered massive flooding, as the U.S. Army Corps of Engineers attempted to balance ...

Scholars Call Out Congressional Committee for 'Mythification' of NEPA

by James Goodwin | April 24, 2018
Tomorrow, anti-environmental members of the House Natural Resources Committee will hold a hearing provocatively titled, "The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare" – yet another in a long line of conservatives' attempts to justify myriad legislative attacks against this bedrock environmental law. As more than 100 CPR Member Scholars and other academic leaders explain in a letter to committee members, though, the hearing would be more aptly titled "The Mythification of NEPA."  The ...

NEPA and Climate Change: Another Basis for Defending the Clean Power Plan

by Joel Mintz | May 26, 2016
The Environmental Protection Agency's (EPA) Clean Power Plan – the agency's bold attempt to use the Clean Air Act to protect our health and the environment by regulating greenhouse gas emissions from new and existing power plants – has been challenged in court by some 28 states, 205 members of Congress, electric utilities, coal companies and other industries, some labor unions, and a few conservative, nonprofit law firms. In response, EPA's rule has been defended by the agency itself, 18 ...

Hurricane Katrina and the Perversity Thesis

by Thomas McGarity | August 26, 2015
In Albert O. Hirschman’s brilliant analysis of conservative responses to progressive social programs entitled The Rhetoric of Reaction, he identifies and critiques three reactionary narratives that conservatives use to critique governmental programs -- the futility thesis; the jeopardy thesis; and the perversity thesis. The futility thesis posits that governmental attempts to cure social ills or to correct alleged market imperfections are doomed to fail because the government cannot possibly identify the problem with sufficient clarity, predict the future with sufficient ...

CEQ Finalizes Guidance for Categorical Exclusions

by Holly Doremus | November 24, 2010
Cross-posted from Legal Planet. The White House Council on Environmental Quality has issued the first of three expected final guidance documents for federal agencies implementing the National Environmental Policy Act. This one, which covers the use of categorical exclusions, is an excellent start. NEPA is the “look before you leap” environmental law. It requires that federal agencies publicly evaluate environmental impacts before taking action. That means preparing an Environmental Impact Statement before taking actions that significantly affect the quality of ...

New NEPA Procedures for Offshore Drilling

by Holly Doremus | August 17, 2010
Cross-posted from Legal Planet. On Monday the White House Council on Environmental Quality issued a report on the NEPA analysis that preceded exploratory drilling at the ill-fated Macondo well in the Gulf of Mexico, together with recommendations for improving NEPA analysis in the future. According to CEQ, the Bureau of Ocean and Energy Management (successor to the disgraced Minerals Management Service) has already agreed to implement the recommendations. The report offers a detailed look at the chaotic and uncoordinated NEPA ...

What if MMS Had Followed the Law When Considering the Deepwater Horizon Permit?

by Dan Rohlf | May 19, 2010
As millions of gallons of oil continue to pour into the Gulf of Mexico, the Washington Post and New York Times reported that the Minerals Management Service (MMS) – the agency within the U.S. Department of Interior that oversees offshore oil and gas leasing and development – mostly ignored some of the country’s most important environmental laws when it gave the green light to Deepwater Horizon and other offshore drilling. The Endangered Species Act requires federal agencies to consult with ...

White House Draft Guidance on Climate Change and Environmental Impact Statements -- A First Look

by Daniel Farber | February 19, 2010
Cross-posted from Legal Planet. The Council on Environmental Quality has issued a draft guidance to agencies on treatment of greenhouse gases.  The key point is that emissions exceeding 25,000 tons per year of CO2 will be considered a “significant environmental impact” and require preparation of an environmental impact statement. Overall, of course, this is a huge step forward. One point that does deserve further attention is the discussion of land use. On a fairly quick read, I’m not clear on ...
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