Free Minds & Free Markets


Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Does the Trump EPA Know How to Deregulate?

The early returns are not promising.

The Trump Administration began with broad deregulatory ambitions. The Administration's first Environmental Protection Agency Administrator, Scott Pruitt, was tasked with undoing the Obama Administration's regulatory handiwork, including the infamous "WOTUS" (waters of the United States) rule and Clean Power Plan.

The Trump EPA's early deregulatory efforts have not fared too well, however. In case after case, federal courts have struck down or stymied the EPA's plans. As I discuss in National Review, this was to be expected, as the Trump EPA has not been particualrly diligent in developing and implementing its deregulatory plans. From the piece:

The EPA's legal difficulties are somewhat self-created, for even if the Obama administration had not been successful in stacking the U.S. Court of Appeals for the D.C. Circuit with liberal judges, quick-and-dirty deregulatory efforts would likely be struck down in court. Trump's first EPA administrator, former Oklahoma attorney general Scott Pruitt, came in with ample experience suing the federal government but little interest in managing a vast regulatory bureaucracy, let alone knowledge of how to reform it from the inside. Pruitt devoted substantial effort to cultivating his image and building conservative support while neglecting to ensure that his agency would be able to deliver on his deregulatory promises. His brief tenure was long on base-pleasing rhetoric but short on substantive engagement with the legal rules governing the EPA's agenda.

Will this change now that Andrew Wheeler has replaced Pruitt? Perhaps, or perhaps not.

The Trump EPA's recent legal defeats may be an augur of more to come. Acting EPA administrator Andrew Wheeler has the practical environmental-policy experience Pruitt lacked and appears to understand that it takes more than a press release or vague proposal to change policy. But the Trump EPA is pushing ahead with deregulatory measures that appear legally vulnerable, either because they have not been developed with sufficient care or because they are at odds with the relevant statutory requirements. . . .

The surest and most effective way to transform environmental policy is for Congress to act. Enacting environmental-policy changes into legislation creates few opportunities for environmentalist groups or liberal attorneys general to file Resistance lawsuits. Unlike administrative rulemakings, congressional action is not subject to "hard-look review," meaning it cannot be thrown out just because a judge concludes a measure is "arbitrary and capricious." Yet here, as in so many other areas, the Trump ad­ministration lacks the knack for, and the interest in, pushing for legislative action. As a consequence, the EPA is forced to gamble that it can get its measures through the courts.

Thus far, those gambles have not been paying off.

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  • bernard11||

    You expect competence from people who claim radiation is good for you?

    Get over it, Adler. Incompetence is the only thing these people have going for them.

  • Rossami||

    If you're going to troll, at least be informed about it. Low dose radiation is good for you. Biologists have known this for decades.

    The technical term for it is hormesis. The layman's version is that, like almost all toxins, the toxicity response curve is J-shaped, not linear.

  • Careless||

    You don't understand. Bernard is on the Left. Therefore he is part of the reality-based community. Therefore, what he believes is true.

  • Greg F||

    You expect competence from people who claim radiation is good for you?

    Health Effects of Low Level Radiation: When Will We Acknowledge the Reality?

    Radiation biologists and medical practitioners have known, since the discovery of X-rays in 1895, that low doses of radiation stimulate all organisms, usually resulting in beneficial health effects (Calabrese and Baldwin 2000).
  • AustinRoth||

    Now don't go citing non-Prog approved facts. Only Prog approved favtsyare allowed to be facts anymore, by order of MiniTruth.

  • bernard11||


    The recently published NCRP Commentary No. 27 evaluated the new information from epidemiologic studies as to their degree of support for applying the linear nonthreshold (LNT) model of carcinogenic effects for radiation protection purposes (NCRP 2018 Implications of Recent Epidemiologic Studies for the Linear Nonthreshold Model and Radiation Protection, Commentary No. 27 (Bethesda, MD: National Council on Radiation Protection and Measurements)). The aim was to determine whether recent epidemiologic studies of low-LET radiation, particularly those at low doses and/or low dose rates (LD/LDR), broadly support the LNT model of carcinogenic risk or, on the contrary, demonstrate sufficient evidence that the LNT model is inappropriate for the purposes of radiation protection......

    The Committee judged that the available epidemiologic data were broadly supportive of the LNT model and that at this time no alternative dose-response relationship appears more pragmatic or prudent for radiation protection purposes.

  • Greg F||

    How convenient you left out the first part (bolded) of the your second paragraph:

    The NCRP Committee recognises that the risks from LD/LDR exposures are small and uncertain. The Committee judged that the available epidemiologic data were broadly supportive of the LNT model and that at this time no alternative dose-response relationship appears more pragmatic or prudent for radiation protection purposes.

    Needless to say the authors suffer from a bit of cognitive disconnect from the first sentence to the second. Better ban granite counter tops. OTOH, by editing out the first sentence you now have demonstrated your just a partisan hack.

  • bernard11||

    Kiss my ass.

    I quoted the conclusion.

    As to "small and uncertain," small is nice, uncertain isn't.

  • Greg F||

    I quoted the conclusion.

    You selectively quoted. A lie by omission.

    As to "small and uncertain," small is nice, uncertain isn't.

    Uncertain is we just don't know. The committee's judgement is opinion, nothing more. Opinions are not science, they are an appeal to authority.

  • Rossami||

    It's also worth nothing that NCRP stands for the "National Council on Radiation Protection and Measurements", a congressionally chartered non-profit that may not be entirely independent in their assessment of this issue.

  • Brett Bellmore||

    The evidence for a linear dose relationship at *high* doses is good. The evidence for a linear dose relationship at *low* doses is... between not there, and negative. They're just trying to use the former to imply the latter.

  • Oli||

  • eyesay||

    The Environmental Protection Agency was created in 1970 by executive order of Republican President Richard M. Nixon. Americans were concerned about the environment, including pollution of our air, water, and land and extinction. In the 48 years since then, some aspects of our environment have improved. Emissions of smog-producing compounds and particulates are much less, so the air is cleaner, especially in hard-hit areas such as the Los Angeles basin. But we continue to face severe environmental problems, including species becoming threatened, endangered, or extinct. And greenhouse gases including carbon dioxide, methane, and oxides of nitrogen, continue to be produced, which has led to climate change characterized by global warming and increasing frequency of very intense storms. This is all real, and most Americans understand that we humans are the cause and we can and must do something about it. Most Americans support a robust Environmental Protection Agency that works hard to prevent species loss and environmental degradation. Most Americans support the Paris Agreement, which President Trump unilaterally pulled out of.

    Regrettably, here we have Jonathan Adler, an intelligent man, fretting that the EPA might not be successful in a program of deregulation, when most Americans understand that the environmental problems we are facing require a robust EPA and not deregulation. As President Trump would conclude: "Sad."

  • gormadoc||

    Nixon's first name was Richard and he was a Republican?! You must be the only person who knows that, otherwise, why would you tell us?

  • Bob from Ohio||

    "severe environmental problems"

    No we don't. Not in the US, try China.

    The environment to libs is like civil rights, its always Selma or Birmingham in 1962, never any credit for improvements.

  • OtisAH||

    Funny how you manage to sidestep any mention as to why our environmental issues have improved. Or what happens to those improvements when their catalyst is removed from the equation.

  • Bob from Ohio||

    The EPA long ago went into maximum regulation for at best marginal gain, at huge cost to consumers.

    The answer to your question is not much.

  • Rev. Arthur L. Kirkland||

    The environment to libs is like civil rights, its always Selma or Birmingham in 1962, never any credit for improvements.

    Credit for improvement: America has fewer racists, misogynists, gay-bashers, and xenophobess today than it did a half-century or century ago.

    We have more people who appease the vestigial bigots, though. We call them Republicans and, in particular, Trump voters.

  • Ben of Houston||

    Eyesay, please look at the changes that Obama made to the Risk Management Plan regulation. Estimates range that it will cost between 10 and 100 million dollars to implement due to it being horrifically vague.

    However, everyone knows the volume of emissions that it will reduce. 0 lb.
    There are a large number of similar measures that Obama passed, including the RICE MACT and Boiler MACT that amounted to exceedingly expensive paperwork exercises with either no or very low quantifiable emission reductions.

    People do not want deregulation of environmental issues because they do not understand what these requirements are.

  • Brett Bellmore||

    "Yet here, as in so many other areas, the Trump administration lacks the knack for, and the interest in, pushing for legislative action."

    Trump, sensibly, thinks that it's the legislature's job to do legislation. He shouldn't have to stand over their shoulders every instant to get them to do their jobs.

    They know what's needed. They're just not interested in doing it.

  • SimonP||

    The same was no less true during the Obama years, but Obama was routinely blamed for congressional inaction - didn't come to the table with a suitably self-compromised proposal, etc.

  • ScottK||

    How many rubles do you get paid to write these screeds about the orange golfer having any kind of political philosophies whatsoever?

    And regulation is not legislation. QED.

  • Brett Bellmore||

    Actually, regulation is legislation, merely illegitimately not written by the legislature.

  • Rev. Arthur L. Kirkland||

    That's as good as "taxation is theft."

  • VinniUSMC||

    "Anything Obama's administration did was good and cannot be questioned. Everything Trump's administration does is bad and must be stopped at all costs."

    Any regulation that didn't come from Congressional action can be undone without Congressional action. Simple. Don't like it? Get out and vote for Congress critters who will enact legislation of your liking. Stop complaining that your extra-congressional actions are being undone, because you don't like how the vote went.

  • OtisAH||

    Yours is exactly the administration's attitude. And they keep losing. Something to consider maybe perhaps? Just kidding. You do you.

  • Stephen Lathrop||

    Any regulation that didn't come from Congressional action can be undone without Congressional action.

    I'm not an expert on this, but I think the problem could be that what you say is technically correct, but not sufficient. It is not true that an established regulation can be undone with nothing more than the administration's say-so. Isn't there a necessary administrative process, established by law? And isn't the process intended, among other things, to assure the resulting regulations, or changes, do conform to congressional intent? So if an administration ordered repeal leaves a legitimate congressional mandate unfulfilled, the administration loses in court. And if the administration ignores the process, it also loses in court.

    Maybe someone who knows more than I do will tell you different.

    Of course, by putting your emphasis back on elections and congressional action, you join Adler on undisputed ground.

  • VinniUSMC||

    If the state prior to Obama era regulations was X (and X was a legitimate regulatory state), and the state after Obama era regulations was X+1, and the Trump era wants to return to X, how exactly is a return to X " leav[ing] a legitimate congressional mandate unfulfilled"? Right, it's not.

    In reality, it's as I said earlier, the justification is entirely "BUT TRUMP!!!!!!!11!!!"

  • Stephen Lathrop||

    How exactly? At least two ways. (1) If the +1 corrected a previous omission of something required by congress—understanding that less-than-complete regulatory perfection can nevertheless be "legitimate." Or, (2) if circumstances in the field regulated changed, bringing a new need to regulate to the fore, under the standing congressional mandate.

  • Krayt||

    Those judgements are left to the executive branch, either called out explicitely by law, or implicitely by regulation is enforcement of the law.

    In neither case is the judicial branch given authority to substitute its own judgement for the executive branch. It rides shotgun over constitutionality of laws, but not over direct exercise of constitutional authority granted each branch.

    This came out in a few of the immigration decisions that went beyond standing and harm and process and so on, where the judges in at least two cases said, "and anyway, I don't accept the president's reasoning". Not with respect to constitutionality or any of that other stuff, but in the judgement authorized to the executive branch by the Congress and Constitution.

    A judge might as well override a veto because he didn't like the President's reason. The People reserve directly-assigned powers to those branches as political branches, and pick up the pieces of a lousy job at the next election.

  • Drewski||

    And as a corrolary, when Congress mandates that regulations be issued to reach a purpose, the administration isn't allowed to ignore this mandate. Don't like it? Elect folks who will repeal regulatory delegations. And good luck with that, because the vast majority of people want environmental protection and recognize that Congress is incompetent to issue detailed statutory rules.

  • VinniUSMC||

    So, the regulations prior to Obama magically didn't reach their "intended purpose", that of course the Obama admin knew better, so they made it right, and returning to the prior state is completely illegitimate, because Trump. Got it.

  • Drewski||

    Although a great many in Congress today believe in magic, I suspect that was not the cause of regulations needing periodic updates and additions. Regardless of whether a wizard did it, the various relevamt statutes contemplate and authorize changing and adding regulations over time. I think regulatory overreach is a problem, but not because of Obama or Trump or fairy magic. I don't support throwing the baby out with the bathwater, though, just because Wall Street analysts project less growth than they'd prefer.

  • OtisAH||

    "as the Trump EPA has not been particualrly diligent in developing and implementing its deregulatory plans"

    "Yet here, as in so many other areas, the Trump ad­ministration lacks the knack for, and the interest in, pushing for legislative action."

    Understatement thy name is "Adler."

    Yeah, deregulatin' sure is harder than it looks. Particularly when you've shuttered and excluded your scientific resources in favor of ignorance and dogma. It's kind of hard to successfully argue a regulation is unnecessary when your entire justification is "Well, duh, it's got to go because it's a regulation!" Outside of Trump rallies and Twitchy, anyway.

  • bernard11||

    Surely you understand that Adler is an ideologue on the subject of regulation, especially environmental rules.

  • Microaggressor||

    Nice projection.

    Regulation makes things more expensive. Excessive regulation heaps massive cost-of-living burdens on the poor. Why do you hate the poor and want them to suffer?

    I seriously doubt they plan to remove ALL regulations. We still need breathable air. They appear to be prioritizing the ones where the cost (falling disproportionately on the poor, in case you forgot) outweighs the benefit. Pro-regulatory ideologues make a habit of downplaying the costs and real people suffer as a result. Get off your high horse.

  • bernard11||

    They appear to be prioritizing the ones where the cost (falling disproportionately on the poor, in case you forgot) outweighs the benefit.

    If you believe the Trump EPA is doing any sort of serious analysis you are a gullible fool.

    I'm all for eliminating silly regulations. I don't believe for a minute that any of the efforts by the current EPA are based on actual defensible analyses of cost and benefits.

  • SimonP||

    I have been telling the blockheads here this from the very beginning. You can't "deregulate" by waving a wand and making regulations go away. There is a whole relevant body of law you have to follow, and if you ignore it, your deregulatory efforts will be for naught. But none of them bought it.

    Hopefully they'll start to get the message, soon.

  • Rev. Arthur L. Kirkland||

    Hopefully they'll start to get the message, soon.

    You mean before November/January?

  • librarian||

    It's about time someone clean up that department, just to clear the air.

  • Krayt||

    As long as the losses are of the type they didn't follow the process, I am fine with it.

    If they are of the form the judicial branch is substituting its own judgement for the executive branch's, which the law, and the Constitution (by way of regulating is enforcing the law) give to it, then I have a problem with it.

    Dealing with crappy law enforcement is exactly what the vote is for, be it this, or immigration enforcement, or lack thereof, or medical marijuana forbearance by the feds, etc.

  • dwshelf||

    It would be more accurate to describe biased judicial activism.

    If Obama were to have been held to the standards now expected of Trump, there would be far less need to deregulate.

  • MonitorsMost||

    So, we need to appoint Warren G and Nate Dogg to run the EPA?

  • Rev. Arthur L. Kirkland||

    The movement conservative approach to science and regulation is embodied by Rep. Marsha Blackburn -- Trump enthusiast, Republican candidate for senator of Tennessee, and ostensible adult -- who proudly and loudly rejects the theory of evolution.

    Evolution is just a theory, after all.

    Much like gravity.

    Carry on, clingers. In all of your half-educated, ignorant conservative finery.

  • Ellen B||

    Fair enough - but what's the solution? Presidencies are short, and appointments are brief. Dug-in bureaucrats fiercely resist boat rocking. Agency bureaucrats also have immense control over rulemaking processes. The ship of state has a mind of its own.

    That said, what do you recommend?


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