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notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed."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order made no attempt to account for, or even acknowledge, the public benefits associated with regulations to be repealed.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 ...

The Missing Ingredient in the Green New Deal

by James Goodwin | March 07, 2019
To this point, much of the focus in the discussion over the Green New Deal has been on the substance of the vision it lays out for a better society – and why shouldn't it be? There's some really exciting stuff included in the Green New Deal's toplines, which are by now well-rehearsed: a full-scale mobilization plan put in place over the next 10 years to get the United States to net zero carbon emissions; major government investments in clean ...

New Report: Socially Vulnerable Communities Face Increasing Risks from Toxic Floodwaters in Virginia

by David Flores | March 06, 2019
2018 was one of the wettest years on record in Virginia, causing catastrophic floods and landslides, as well as unexpectedly high levels of pollution in the Commonwealth’s waterways and the Chesapeake Bay. While the last waterlogged year is only a recent memory for Virginians, seemingly unremarkable snow and rainfall at the end of February caused the James River to crest last week at its highest level in Richmond in almost ten years. Climate change has clearly transformed our experience with ...

The Potential Benefits of Declaring a Climate Emergency

by Daniel Farber | March 04, 2019
Originally published on Legal Planet. I have a confession: When I started thinking about the possibility of a climate emergency declaration, it was mostly as a counterpoint to Trump's possible (now certain) declaration of an immigration emergency. As I've thought about it, however, it seems to me that there are enough potential benefits to make the idea worth serious consideration. A relatively restrained use of emergency powers could still have some real payoff. In general, I'm not in favor of expanding ...

Resolution of Disapproval: Call for Repealing the CRA Featured in 'The Environmental Forum'

by James Goodwin | February 28, 2019
The return of divided government promises to bring with it a welcome, albeit temporary, reprieve from the unprecedented abuse of the Congressional Review Act (CRA) that we witnessed during the 115th Congress. As I argue in an article featured in the March/April edition of The Environmental Forum, published by the Environmental Law Institute, the CRA has become far too dangerous a law – and the happenstance of divided government should not be the only thing protecting the public interest from ...

New on 'Connect the Dots': The Frontline Communities Fighting Back Against Polluting Pipelines

by James Goodwin | February 21, 2019
For affected indigenous communities in the United States and Canada, new oil and gas pipelines snaking across their lands represent a new kind of attack. Dirty, polluting, dangerous, and built without the communities' consent, these pipelines are the inevitable outcome of North America's hydraulic fracturing and tar sands oil "revolutions" that have played out in recent decades. These indigenous frontline communities must bear the disproportionate costs brought about by developed nations' continued addiction to fossil fuels, all without seeing most ...

Trump's 'Emergency' and the Constitution

by David Driesen | February 20, 2019
Originally published in The Regulatory Review. Reprinted with permission. President Donald J. Trump has declared a national emergency to justify building a wall on the U.S. southern border, which Congress refused to fund. But Mexicans and Central Americans coming to our country in search of a better life does not constitute an emergency. Immigration at the southern border is neither new, sudden, nor especially dangerous. The number of immigrants has been declining for years and crime rates among immigrants are lower ...

It's Official: Trump's Policies Deter EPA Staff from Enforcing the Law

by Joel Mintz | February 19, 2019
This op-ed was originally published in The Hill. The Environmental Protection Agency (EPA) released an annual report Feb. 8 on its enforcement activities in fiscal 2018. After wading through a bushel full of cherry-picked case studies and a basket of bureaucratic happy talk, the report paints a dismal picture of decline in a crucially important EPA program. EPA's data indicate that it initiated and concluded approximately 1,800 civil judicial enforcement cases in 2018 — fewer than half the number it ...

National Security, Climate Change, and Emergency Declarations

by Daniel Farber | February 18, 2019
Originally published on Legal Planet. Trump finally pulled the trigger and declared a national emergency so he can build his wall. But if illegal border crossings are a national emergency, then there's a strong case for viewing climate change in similar terms. That point has been made by observers ranging from Marco Rubio to Legal Planet's own Jonathan Zasloff in a post last week. I agree, but I want to dig deeper because it's such an important point. In order to ...

Climate Damages: Uncertain but Ominous, or $51 per Ton?

by Frank Ackerman | February 14, 2019
Originally published on Triple Crisis. Second in a series of posts on climate policy. Find Part 1 here. According to scientists, climate damages are deeply uncertain but could be ominously large (see the previous post). Alternatively, according to the best-known economic calculation, lifetime damages caused by emissions in 2020 will be worth $51 per metric ton of carbon dioxide, in 2018 prices. These two views can’t both be right. This post explains where the $51 estimate comes from, why it’s not reliable, ...

On Buying Insurance, and Ignoring Cost-Benefit Analysis

by Frank Ackerman | February 11, 2019
Originally published on Triple Crisis. The damages expected from climate change seem to get worse with each new study. Reports from the IPCC and the U.S. Global Change Research Project, and a multi-author review article in Science, all published in late 2018, are among the recent bearers of bad news. Even more continues to arrive in a swarm of research articles, too numerous to list here. And most of these reports are talking about not-so-long-term damages. Dramatic climate disruption and ...

Does the Future Have Standing?

by Daniel Farber | February 07, 2019
Originally published on Legal Planet. Climate change is not just a long-range problem; it's one that will get much worse in the future unless major emissions cuts are made. For instance, sea levels will continue to rise for centuries. But the people who will be harmed by these changes can't go to court: they haven't been born yet. How can their interests be represented in court? And even people now alive who might still be around in, say, 2100, will ...

Rao's Record as Regulatory Czar Raises Red Flags

by James Goodwin | February 04, 2019
Tomorrow morning, Neomi Rao, the current administrator of the White House Office of Information and Regulatory Affairs (OIRA), is set to appear before the Senate Judiciary Committee for a hearing on her nomination to the U.S. Court of Appeals for the D.C. Circuit. If confirmed, she would fill the open seat once occupied by Supreme Court Justice Brett Kavanaugh. Administrator Rao's nomination has prompted intense media and public scrutiny of her background, and appropriately so, given the high stakes involved. ...

Flipping the Conservative Agenda

by Daniel Farber | January 31, 2019
Originally published on Legal Planet. Conservatives, with full support from Donald Trump, have come up with a menu of ways to weaken the regulatory state. In honor of National Backward Day – that's an actual thing, in case you're wondering, and it's today – let's think about reversing those ideas. In other words, let's try to come up with similar mechanisms to strengthen protections for public health and the environment instead of weakening protections. It's an interesting experiment, if nothing ...

Cap-and-Trade Could Fill Gaps in Governor Wolf's Climate Change Executive Order

by Amy Sinden | January 30, 2019
This post was originally published by JURIST. The news on the climate crisis has been bad lately and getting worse. In the face of President Trump's continued denial and his administration's diligent efforts to roll back every shred of progress made by the Obama administration and to prop up an ailing coal industry, the warnings from the scientific community have only become more dire. In November, 13 of Trump's own agencies released a 1,600-page report confirming that climate change is ...

The Worst of a Bad Lot

by Daniel Farber | January 24, 2019
Originally published on Legal Planet. The Trump administration has many energy and environmental initiatives, none of them good. But in terms of shoddy analysis and tenuous evidence, the worst is the administration's attempt to freeze fuel efficiency standards. For sheer lack of professionalism, the administration's cost-benefit analysis is hard to match. And you can't even say that the administration is captive to industry, because this isn't something industry asked for. It's a case of untethered ideology trumping evidence and economics. ...

What's Wrong with Juliana (and What's Right?)

by Daniel Farber | January 22, 2019
Originally published on Legal Planet. Juliana v. United States, often called the "children's case," is an imaginative effort to make the federal government responsible for its role in promoting the production and use of fossil fuels and its failure to control carbon emissions. The plaintiffs ask the court to "declare [that] the United States' current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of United States CO2 emissions," and use that inventory to "prepare and ...

Regulatory Review in Anti-Regulatory Times: Congress

by Daniel Farber | January 17, 2019
Originally published on Legal Planet. In theory, cost-benefit analysis should be just as relevant when the government is deregulating as when it is imposing new regulations. But things don't seem to work that way. This is the second of two blog posts analyzing how costs and benefits figured in decisions during the past two years of unified GOP control of the federal government (read the first post here). Today, I focus on Congress. For the first time in history, Congress ...

Pollution Bursts and Public Health

Farber | Jun 13, 2019 | Environmental Policy

Updates on the War on Science

Farber | Jun 10, 2019 | Environmental Policy

Getting Ready for Conference on Regulation as Social Justice

Goodwin | May 31, 2019 | Regulatory Policy

Trump EPA Hiding Hundreds of Deaths in Plain View

Farber | May 28, 2019 | Environmental Policy

EPA's Partial Retreat on Cost-Benefit Analysis

Goodwin | May 22, 2019 | Regulatory Policy

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