The Volokh Conspiracy

Mostly law professors | 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.