The Trump Administration's New Anti-Safeguard Executive Orders on Guidance, Explicated

by James Goodwin | October 14, 2019

Last week, President Trump unleashed the latest volley in his administration's efforts to bring about the "deconstruction of the administrative state" with the signing of two new executive orders relating to agency issuance and use of "guidance documents." The first purports to ensure "improved agency guidance," while the second claims to promote "transparency and fairness" in the use of guidance for enforcement actions. The bottom line for the orders is that, with a few potentially big exceptions, they are unlikely to have much practical impact. Instead, this is mostly a messaging exercise by the Trump administration aimed at advancing the broader conservative campaign to delegitimize the regulatory system by propagating the tired old myth that regulatory agencies are unaccountable and pose a threat to our society.

Before diving into orders' substance, two housekeeping points need to be addressed. First, what are guidance documents anyway? They are best understood as a conceptual catchall term describing nearly anything that agencies put in writing that's not a rule (i.e., that does not have the independent force of law). According to this understanding, guidance documents cover a huge universe of diverse things – emails, webpages, warning posters, and so on – making efforts to "regulate" their issuance and use an inherently difficult proposition. Instead of imposing new requirements like traditional regulations, the function of guidance is to promote regulatory certainty. Moreover, and relatedly, the vast majority of guidance documents are ...

Abolition of Supplemental Environmental Projects: A Damaging Retreat for Environmental Enforcement

by Joel Mintz | September 18, 2019
Late last month, the U.S. Department of Justice (DOJ) quietly took a major step to undercut the enforcement of our federal pollution control laws. In a publicly released but little publicized memorandum, DOJ’s Associate Attorney General for Environment and Natural Resources, Jeffrey Bossert Clark, announced that the agency will no longer approve enforcement case settlements with local governments that include Supplemental Environmental Projects (SEPs) – a long-standing feature of negotiated resolutions of environmental enforcement cases. SEPs allow a non-complying company, ...

Overshoot: Trump's Deregulatory Zeal Goes Beyond Even Where Industry Asks Him to Go

by Amy Sinden | September 16, 2019
Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0. The Trump EPA last month proposed a new plan to remove oil and gas developers’ responsibility for detecting and fixing methane leaks in their wells, pipelines and storage operations. This proposal to axe the Obama-era methane rule is notable for two reasons. First, it is a huge step backward in the race to stabilize the climate, just at the moment scientists warn we need to move forward ...

Trump's Legal Challenges to the California Car Deal

by Daniel Farber | September 09, 2019
Originally published on Legal Planet. Prompting rage by President Trump, California and several carmakers entered into a voluntary agreement on carbon emissions from new cars that blew past the administration's efforts to repeal existing federal requirements. Last week, the Trump administration slapped back at California. Although there's been a lot of editorializing about that response, I've seen very little about the legal dimensions of the administration's actions. I'd like to shed a little bit of light on those. The administration ...

Get Ready for Phase 2 of the Deregulation Wars

by Daniel Farber | August 05, 2019
Originally published on Legal Planet. The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution. The Clean Air Act, the federal air ...

Cost-Benefit Analysis According to the Trump Administration

by Rena Steinzor | July 23, 2019
Originally published by The Regulatory Review. Reprinted with permission. As the United States slogs through year three of a deregulatory implosion, one truth has become clear: As practiced by the Trump administration, cost-benefit analysis has become a perversion of a neutral approach to policymaking. To be forthright, I was never a fan of the number crunching. I thought it created the false impression that numerical estimates were precise, drastically understated benefits, buried controversial value judgments behind barricades of formulas, and ...

The Coming Decline of Anti-Regulatory Conservatism

by Joel Mintz | July 23, 2019
Originally published by The Regulatory Review. Reprinted with permission. When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter—ideas intended to block and ...

The Hill Op-ed: Trump Trashes the Natural World and Calls It 'Environmental Leadership'

by Joel Mintz | July 17, 2019
This op-ed was originally published in The Hill. In a recent speech, President Trump touted what he described as "America's environmental leadership" during his presidency. He claimed that over the past two-and-a-half years, his administration has been "a good steward of public land," reduced emissions of greenhouse gases, and successfully promoted clean air and water.  His claims are Orwellian in scope and mendacity. Even the most cursory examination of the Trump administration's environmental record reveals an appalling litany of irresponsible, anti-environmental ...

Op-Ed Shines Light on Trump EPA's Efforts to Re-Rig Cost-Benefit Analysis for Polluters

by James Goodwin | July 02, 2019
Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor ...

Pollution Bursts and Public Health

by Daniel Farber | June 13, 2019
Originally published on Legal Planet. When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the ...

Updates on the War on Science

by Daniel Farber | June 10, 2019
Originally published on Legal Planet. The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science. Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support ...

CPR Member Scholars Feature Prominently in this Year's Duke Administrative Law Symposium

by James Goodwin | May 20, 2019
The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year's event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year's topic was "Deregulatory Games," which examined how the Trump administration's aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of ...

CPR Scholars and Staff Call on EPA to Abandon Proposed Attack on Mercury Rule

by James Goodwin | April 18, 2019
One of the most successful environmental regulations in U.S. history is under attack from the Trump EPA – and its demise might be accomplished by shady bookkeeping. That is the conclusion of comments filed by Center for Progressive Reform Member Scholars and staff on April 17. Since it was issued in 2011, the Mercury and Air Toxics Standard (MATS), which establishes rigorous technology-based standards to limit hazardous air pollution from fossil-fueled power plants – has reduced electric utilities' emissions of ...

OMB Leveraging the CRA to Add to Its Oversight of Independent Regulatory Agencies

by Bill Funk | April 16, 2019
Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a far more centralized CRA review process. The CRA requires federal agencies to send newly adopted rules to the House and Senate before the ...

CPR Member Scholars to EPA: Clean Water Rule Rollback Based on Bad Law, Weak Science

by Matt Shudtz | April 15, 2019
The federal Clean Water Act has been a resounding success as a tool for restoring our nation's waterways and preserving wetlands and other vital components of our ecosystems. But that success depends, in part, on restricting development in ecologically sensitive areas. That's why the Trump administration has proposed to narrow the scope of the Clean Water Act's protections. Not by amending the law, mind you – that wasn't possible when Republicans controlled both houses of Congress, much less now. Instead, ...

What Else Should Congress Investigate?

by Daniel Farber | April 12, 2019
Originally published on Legal Planet. Every day, it seems that there is a headline about some investigation involving campaign finance violations, the White House, or the actions of some foreign power. Perhaps that's all the bandwidth that Congress has. But there are other areas calling out for inquiry. Here are just a few: CAFE Standards. The car industry asked for delays and modifications in fuel efficiency standards. The administration came back with a drastic rollback that went far beyond what ...

Economists vs. Environmentalists: Time for D├ętente?

by Daniel Farber | April 09, 2019
Originally published on Legal Planet. Cost-benefit analysis has long been the target of environmentalist ire. But one lesson of the Trump years has been that economic analysis can be a source of support for environmental policy — it is the anti-regulatory forces who have to fudge the numbers to justify their actions. Most energy and environmental economists are aghast at Trump's assaults on climate change regulations — many of them would instead favor stricter regulation over the status quo. Maybe ...

Shackling EPA Risk Assessment

by Daniel Farber | April 01, 2019
Originally published on Legal Planet. EPA pollution regulations are based on an assessment of the risks posed by pollutants. This can be a complex scientific judgment. The Clean Air Scientific Advisory Committee (CASAC), the agency's scientific advisory board, is pushing for major changes in the way that EPA approaches this analysis. The effect would be to make it much harder for EPA to prove that a risk exists. Currently, risk assessment is based on a "weight of the evidence" approach ...

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