Trump anti-reg push likely to end up in court

BY REBECCA BEITSCH - 05/25/20

An executive order signed by President Trump directing agencies to slash regulations in order to boost the economy is likely to lead to a number of court challenges.

The Tuesday order directs agency heads to “identify regulatory standards that may inhibit economic recovery,” highlighting that regulations could be permanently or temporarily lifted in order to fight the economic fallout of the coronavirus.

But experts say speeding up the regulatory process or nixing public comment periods would likely be slammed in court unless the Trump administration can demonstrate their actions were necessary due to the pandemic.

“The problem there is those measures have to be directly related to addressing the pandemic. They can't just be political priorities the Trump administration wants to speed up and get across the finish line in the first term,” said Amit Narang, a regulatory policy advocate with Public Citizen, pointing to the requirements of the Administrative Procedures Act.

“They’re not going to be able to claim that their ideological rollbacks are needed urgently to address the coronavirus just because they’re going to create economic growth. It’s not an argument that’s going to carry water on the policy side but certainly on the legal side in court either,” Narang said.

The order may be as likely to spur eye rolls as it is to spur lawsuits, however, as some say the directive is more about messaging than affecting regulation.

Critics say even with the accelerated timeline the administration seems to be pushing, the White House has little time to accomplish much else this term.

“What are you going to do? Are you going to review the whole suite of statutes and regulations that you implement and that you've spent three-and-a-half years rolling back and then you’re going to try and get more blood from a stone? And then try to accomplish that feat by 2021? It's not going to be possible,” said John Walke with the Natural Resources Defense Council.

The Trump administration told The Hill they believe the order will withstand legal challenge.

“Statutes frequently allow an expedited regulatory process during urgent circumstances. The heart of what this administration is working to accomplish is clear: get our economy back to historic levels and get millions of Americans back to work,” the White House said by email.

The Trump administration has prided itself on pushing deregulation since nearly day one, with the president signing orders to nix two regulations for every new rule they want to issue and another requiring agencies to offset the costs of any new rules by scrapping old ones.

But Walke and others argue the administration will face hurdles with its approach.

“Trump does not want to appear helpless so he’s directing agencies to pin blame for the economy on regulations that have nothing to do with the economy. It’s plain to see that the pandemic and shelter-in-place orders are the reasons for the economic downturn,” Walke said.

The Trump order encourages the temporary suspension of regulations, a move already in use by the Environmental Protection Agency (EPA).

The agency in late March issued a temporary order, though it has no set end date, announcing it would not fine companies that stop monitoring their pollution emissions — something required by both the Clean Air Act and the Clean Water Act.

The EPA says companies must document when they stopped monitoring and why the coronavirus was the cause to avoid fines down the road, but environmental groups and states have already sued, arguing the damage will have already been done, risking the health of residents near industrial operations.

It’s a playbook that could easily be adopted by other agencies, who might consider lifting private lending restrictions, regulations on food safety like inspection line requirements at meat packing plants or suspending contract rules that require agencies to pick the most competitive bid.

Trump, however, appears hopeful that those temporary suspensions might be permanent.

“We want to leave it that way,” he said at a Cabinet meeting Tuesday. “In some cases we won’t be able to, but in other cases we will.”

Opponents say that would be illegal.

“That's rulemaking 101 that you cannot just make these things permanent,” Narang said.

Sean Moulton, a senior policy analyst with the Project on Government Oversight, said Trump’s attempt to issue a “get out of jail free card” won’t be able to bypass the lengthy rulemaking process, even in the name of economic recovery.

“You have to go through the rulemaking process, do research, issue a proposal, offer a public comment period, read the public comments, you have to respond to the public comments, you have to explain the changes you’re making, and if you ignore data just because you don't like it, people can take you to court,” he said.

What worries critics the most is that agencies will suspend enforcement of regulations, much like the EPA has done with its temporary order.

A number of studies have found agencies under the Trump administration have been less aggressive about going after companies that break the law by issuing fines or enforcement actions. That has been the case at the Food and Drug Administration, the EPA, the Consumer Finance Protection Board and many others.

“That’s the part that gives me the greatest concern, the idea of nonenforcement and telling agencies without any real basis or explanation that more lax enforcement will help us economically,” Moulton said. “That’s not to say you can’t drag them into court but it takes time.”

Conservatives groups have praised the memo.

“Many of the problems we’re experiencing today are decades in the making. They stem from well-meaning but tragically harmful laws and regulations that have accumulated over many years. This isn’t about politics, it’s about breaking barriers,” the Charles Koch-funded Americans for Prosperity wrote in a statement, saying the order would “empower the country to recover stronger.”

But critics of the executive order said the White House should be focused on addressing the core health issues that underlie the economic fallout.

“This crisis needs to be addressed through the administration with real public health measures,” Narang said. “Instead we get deregulation as an answer to the pandemic that makes no sense and is a complete distraction.”