Now that the Trump Administration can no longer rely on Congress using the Congressional Review Act to repeal regulations, they are on their own.
And the initial results raise questions about their ability to succeed.
One strategy that the Trump Administration has deployed is delaying the effective dates of Obama Administration regulations that have not yet gone into effect. This is not terribly unusual as presidents of both parties have employed it to buy time to figure out what to do with the policies of their predecessors.
{mosads}But the Trump Administration has gone farther than previous Presidents. It has also tried to delay the implementation of regulations that are already in effect.
Last week, its attempt to delay an EPA regulation on methane emissions was slapped down by the District of Columbia Circuit Court of Appeals. The court said that EPA would have to go through a normal rulemaking process to delay or reverse the offending regulation.
Buoyed by the court victory, public interest groups have high hopes for stopping other attempts by President Donald Trump to delay regulations that have gone into effect. Their prospects of victory, given the decision last week, are good.
The Trump shortcut of trying to delay rules to save industry the burden of complying with them will likely only work for regulations not yet in effect. Even for these rules, the Trump Administration likely needs to make sure that its delays are finite (the Department of Education has been sued over an indefinite delay of one of its regulations).
In some cases, the Trump Administration has begun to go through proper channels and use the rulemaking process to try and repeal Obama era regulations. They have already proposed regulations to repeal parts of an Occupational Safety and Health Administration (OSHA) rule protection workers from beryllium exposure. More prominently they have proposed repealing the Waters of the United States regulation from the EPA.
But as with the regulatory delays, the Trump Administration appears to be cutting corners in ways that could haunt them in the courts. The WOTUS repeal is a document that largely ignores the scientific arguments made by the Obama EPA when they created the WOTUS rule, and instead cites to a court decision (FCC v. Fox Television Stations) that may or may not apply to EPA regulations.
Similarly when producing the economic analysis for the WOTUS rule, the EPA ignored the work it had previously done on measuring the benefits of the rule and merely asserted that benefits were unquantifiable. The Obama Administration had measured the benefits as ranging from $339 million to $555 million annually. Any court reviewing the repeal is likely to question the wholesale dismissal of these estimates.
The Trump Administration is eager to reverse the regulatory legacy of the Obama Administration. But the Obama Administration worked for years to build that legacy and created thorough and complete analyses to support its regulatory initiatives. Overturning these initiatives will take more than hand-waving delays and repeals that merely assert that the government has changed its mind.
If the Trump Administration isn’t willing to put in the years of work necessary to deregulate, the Trump regulatory record will end up like other poorly thought out initiatives.
Trump University and Trump steaks come to mind.
Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart
The views expressed by contributors are their own and are not the views of The Hill.