ILNews

Trump tests legal limits by delaying dozens of Obama's rules

Back to TopCommentsE-mailPrintBookmark and Share

It typically takes years for presidents to kill federal regulations they dislike, but Donald Trump has found a shortcut: He’s just putting them on long-term hold.

The Trump administration has stalled more than two dozen Obama-era rules, a legally questionable tactic that sidesteps the cumbersome rulemaking process.

Presidents from both parties routinely pause their predecessors’ rules, but Trump’s delays are lasting longer and reaching further -- with targets including protections for student borrowers, standards for e-cigarettes, and expanded requirements that airlines report lost luggage. In one instance, a federal court found the approach illegal, providing fodder for future challenges.

"Obama did it to Bush. Bush did it to Clinton," said Stuart Shapiro, a Rutgers University professor who served as a White House regulatory analyst under presidents Bill Clinton and George W. Bush. "But the extent of the regulations that we’re talking about -- and the political importance and the impact -- is greater in the Trump administration."

Federal agencies have wide latitude to rewrite and rescind rules, but they must follow the Administrative Procedure Act, a 71-year-old law that aims to prevent regulatory whiplash. Under that law, agencies must first formally propose revisions, justify them and give the public a chance to weigh in. Relatively small tweaks, such as a delay, can advance more quickly but generally still require a formal notice and comment period.

Trump has moved aggressively to fulfill his promise to repeal “job-killing rules.” He issued an order requiring two rules be spiked for each one created and capped the cost of new regulations.

There will be a "truly historic shift" in the regulatory approach under Trump, said Neomi Rao, the newly confirmed head of the White House Office of Information and Regulatory Affairs.

“The president has indicated a really fundamental shift in the way that we’re going to think about regulations," Rao told reporters Thursday. Rao said she would ensure "that deregulatory effort is effective, responsible and consistent with the law."

Supporters of Trump’s approach say the president is just doing what he promised by taking on overzealous regulations. The goal of trying to align government with a president’s own philosophy "is hardly uncommon," said Dan Goldbeck, a research analyst specializing in regulations at the conservative-leaning American Action Forum.

The effort isn’t an attempted wholesale undoing of Obama-era rules, Goldbeck said. "I think the intention is to dive back into them and see if they can tweak them -- and not necessarily chop them entirely," he said.

Trump’s Environmental Protection Agency is following the law in ensuring its "actions are consistent with our core mission and statutory authority granted by Congress," spokeswoman Amy Graham said. "Where regulations may be unjustified or overly burdensome, we will consider all legally available means to provide regulatory certainty," she said.

In some cases, the administration is buying time for possible rule rewrites, as with an Agriculture Department regulation governing the treatment of organically raised livestock. The department delayed the measure’s effective date by eight months and announced it was launching a formal effort to rewrite the regulation.

The administration has gone further in some cases, indefinitely delaying all or parts of rules while contemplating revamping them. They include a Federal Highway Administration mandate that local governments monitor greenhouse gas emissions and a congressionally ordered update of penalties for automakers that fail to meet fuel economy standards.

"These agencies are saying they’re not going to do the job they’ve previously said needs to be done, and they’re hoping to get away with that by promising some future replacement regulation," said William Buzbee, a regulatory law professor at Georgetown University. "This being overtly declared on so many fronts is really quite unusual."

Earlier this month, a U.S. federal Court of Appeals panel rebuked the EPA for suspending a regulation requiring oil and gas companies to pare emissions of methane. A two-justice majority said the EPA wrongly claimed discretion to halt the already finalized rule, and if the agency wanted to rescind the measure, it must cite specific statutory authority to do so or go through a formal rulemaking process.

Emily Hammond, a law professor at George Washington University, said the judges were putting agencies on notice that the court would carefully scrutinize their justifications for delaying rules. The message: "You must meet statutory criteria, and if you don’t, we’ll hold what you did unlawful," she said.

The ruling is especially notable because that Washington-based appeals court hears the bulk of regulatory cases, and is poised to be the arbiter in other delay-related challenges to come. State attorneys general, environmentalists and good government activists have filed lawsuits challenging at least five other regulatory delays.

Attorneys general in 18 states and the District of Columbia last week filed a lawsuit challenging a decision by Education Secretary Betsy DeVos to put on hold portions of a regulation designed to protect student borrowers who attended for-profit colleges. Just Wednesday, environmental groups filed a challenge to the EPA’s one-year delay of ozone pollution requirements. And farm workers are fighting an EPA delay of requirements that people applying certain high-risk pesticides receive training and be certified.

Challenges Filed

Some factors discourage legal action: Lawsuits move slowly and, in some cases, it may take so long to litigate over a delay that the argument becomes moot. Some delays were set for 60 or 90 days, others are for a year or are indefinite. The number of delays also forces would-be challengers with limited resources to pick their battles.

To be sure, Trump’s predecessor, Barack Obama, was an active rulemaker. He finalized 90 major, economically significant regulations in his final year -- some rushed through in the weeks before Trump was inaugurated.

The Trump administration has cited an array of legal authorities and rationales to support delays.

When the Department of Transportation postponed a rule requiring more airlines report lost or damaged baggage and wheelchairs, regulators made no secret of their goal to protect airlines: "Industry is facing challenges with parts of this regulation and needs more time to implement it," the department said.

And when the EPA said it was giving farmers at least a year more to comply with the pesticide application rule, the agency blamed a staffing shortage: "EPA still has only one Senate-confirmed official," it said in June.

Reasons for Delays

The Trump administration cited a provision of the Administrative Procedure Act that gives agencies limited authority to forgo notice and comment periods if there is "good cause" to find that compliance would be impractical or contrary to the public interest. And the agencies turned to a section authorizing postponements if "justice so requires" because pending litigation against the regulation is likely to succeed.

The variance suggests agencies may be trying different approaches to see what sticks, said Georgetown Law professor Lisa Heinzerling, an EPA official in the Obama administration.

"Their legal reasoning in some of these cases is so bare bones that it just seems experimental," she said.

The administration may be trying to prevent companies from spending money to comply with requirements that are destined for the trash bin. After all, power plant owners howled when they were forced to buy equipment limiting mercury pollution under a 2012 mandate only to later see the Supreme Court order the rule be reassessed.

Save Money

But the rapid regulatory pivots can carry costs, too. In February, Trump’s Interior Department told companies they need not follow an Obama rule that changed how they report the value of oil and gas unearthed from public land -- after it had gone into effect. Companies that had already changed their accounting systems to comply were given until August to revert back.

The U.S. regulatory framework is designed to protect against just those kinds of shifts, said James Goodwin, a senior policy analyst with the liberal Center for Progressive Reform.

"So much of the broader fabric of administrative law is pointed toward finality," Goodwin said. "And once the rulemaking process has been finalized, the way you promote regulatory certainty is the process ends, and that’s when enforcement and compliance begins."

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

ADVERTISEMENT