Trump admin relaxes regulations to fight coronavirus and also loosens environmental rules



Lisa Riordan Seville and Andrew W. Lehren, NBC News•April 7, 2020

As the coronavirus sweeps across the U.S., the Trump administration is altering regulations — but not just to address the impact of the pandemic.

In addition to scores of virus-related measures, like new rules for paid sick leave, looser rules for banks and energy companies and crackdowns on hoarding, the Trump administration is moving forward with rollbacks of environmental regulations and changes to immigration courts.

An NBC News review of regulatory filings shows that about 200 notices, proposed and finalized rules and presidential proclamations citing the coronavirus have been published since February. The global pandemic has spurred changes in health care, finance and labor regulations as the administration scrambles to blunt the effects of the crisis.

Almost 60 filings have been published in April alone, indicating that the pandemic will continue to bring major shifts across federal agencies before the crisis is over.

"We had some very old and obsolete rules that we had to live with," President Donald Trump said when he declared a national emergency on March 13. "We're breaking them down now. And they're very usable for certain instances, but not for this."

Legislation can be delayed by disputes in Congress, but regulation "can move more quickly, and that's one of the things that we're seeing now," said Susan Dudley, director of George Washington University's Regulatory Studies Center.

After a regulation is proposed, there is generally a comment period to allow the public to respond before the rule is finalized. In response to the pandemic, some regulations are going into immediate effect to help address pressing issues. Presidential proclamations, emergency declarations and notices of shifts in enforcement are also allowing changes to unfold more quickly than usual.

In recent weeks, regulations have been posted that ease financial rules to keep big banks lending and allow the use of unapproved drugs and devices. Others clamp down on hoarding of protective equipment and address licensing requirements for health care workers. The president limited travel from China and halted immigration at the southern border.

Last week, a temporary rule instituted new paid leave rules for those sick and those caring for loved ones, along with a loosening of privacy protections around health information to address COVID-19, the disease caused by the coronavirus.

Experts said that as medical and financial rules are truncated or rolled back, the federal government has to balance clearing red tape and maintaining sufficient controls so things don't go awry.

"There should be a willingness to cut some of the regulatory requirements, but you don't want to threaten health and safety in the name of promoting health and safety," said Sally Katzen, a professor at NYU Law School who was administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget during the administration of President Bill Clinton.

"There isn't a magic formula for how much you can relax requirements without crossing the line," Katzen added. "You want people who are making decisions based on science."

The effort to keep the economy moving should shore up banks so they keep lending, but it shouldn't be a windfall for financial institutions, said Sarah Bloom Raskin, who was deputy secretary of the Treasury during the administration of President Barack Obama.

"Bank regulators should be focused on two goals — making sure that banks are actively encouraged to assist borrowers to get back on their feet and making sure that the condition of the banks is strong," Raskin said. "Deregulatory action right now should move forward only if it will encourage new lending while at the same time requiring that banks not whittle away their own safety cushions with dividend payments or stock buybacks."

But some of the rules instituted to address the health crisis may have hampered states' ability to trace the virus' spread. Regulations to centralize testing also triggered restrictive criteria from the Centers for Disease Control and Prevention that limited wide-scale national testing, initially delaying the response of private labs while the virus continued to spread undetected across the U.S. Imports of masks from Australia and China were slowed because they didn't match American standards.

While some have blamed the White House for having failed to move more aggressively, supporters of deregulation point to the missteps as examples of how bureaucracy impeded the country's ability to act at a crucial moment.

"This response has been a wake-up call that we need further improvement so that our bureaucracy can move more quickly in types of crisis," said Joel Griffith, a research fellow at the Heritage Foundation, a conservative think tank in Washington.

Said an official of the Office of Management and Budget: "Anyone who supports adding more government bureaucracy and roadblocks at a time of national crisis is out of touch. President Trump's administration for three years has provided massive deregulatory wins for the American people — many of which allowed for our quick and strong response in an all-of-government approach. Regulatory reform is even more important now, to allow our hospitals and doctors, our industries and our state and local governments to fight COVID and to get Americans back to work."
The environment and immigration

Not all the regulations moving forward are tied directly to the coronavirus.

Since its earliest days, the Trump administration has been aggressively rolling back regulations. One of the president's first executive orders required that for every regulation passed, the relevant agency must find two to eliminate and ensure that the costs of any new regulation be managed. The one-in, two-out policy has led to deregulation across nearly every area of the federal government over the past three years.

That's continued during the pandemic, with environmental regulations in the crosshairs.

In a devastating blow to climate advocates, the Environmental Protection Agency finalized a rule that rolled back Obama-era vehicle mileage standards, gutting efforts to curb fossil fuel emissions. Other measures moving forward could kill billions of migratory birds, roll back requirements that climate change impacts be considered in the environmental reviews of most infrastructure projects, ease controls on coal plants' toxic ash and loosen restrictions on mercury emissions.

In some cases, the federal government is extending public comment, as it did last week with a rule that scientists say would upend how the government uses science in its decision-making, including setting rules for pollution and the effects of chemicals on the environment and human health.

"EPA is committed to giving the public ample time to participate in the rule-making process as we continue moving forward with our regulatory agenda," an EPA spokesman wrote in a statement. "Understanding that we are working under unprecedented times, EPA will continue to take this into consideration as we make progress on our mission of protecting human health and the environment."

Changes have also moved forward in the immigration courts. An interim rule announced by the Justice Department expands the Board of Immigration Appeals, the appellate arm of the immigration court system. The measure allows the department to add two judges to the board, which it says would help address a crippling backlog of immigration cases.

The rule, which goes into effect immediately, perplexed lawyers, who for weeks have been calling for the immigration courts to shut down to protect staff members and immigrants. Despite the outcry from judges, law enforcement officials and advocates, detainees are still being transported to in-person hearings in many jurisdictions.

The immigration courts were controversial before the pandemic. Attorney General William Barr, who heads the courts, was set to testify before a congressional panel in late March about the politicization of the system. The hearing was canceled because of the coronavirus. But immigrant advocates see the move to expand the board as a continuation of the court's political swing.

"The fact that it goes into effect overnight is deeply problematic," said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. "It appears that [the court] may have taken advantage of a time when people are rapidly responding to a crisis to implement its own agenda."

The Executive Office for Immigration Review, which operates the courts, didn't respond to a request for comment.

Academics who study deregulation said agencies will likely move forward with changes of all kinds in the coming weeks, even as much of the country remains under orders to stay home. With an election coming, there's reason to press on — regulations published after about June could be overturned by a new administration under the Congressional Review Act, said Dudley of George Washington University.

"If an agency has priorities," she said, "they are going to want them published before that date."