In the News

The decision Tuesday caps the administration’s poor record fighting for its deregulatory attempts in court. According to the Institute for Policy Integrity at the New York University School of Law, the administration has lost more than 80 percent of its legal attempts to undo or force agency regulations in its favor. “The EPA constructed an unsupportable legal theory to justify the Clean Power Plan,” said Richard Revesz, director of the institute.

"For four years, the Trump administration has propagated the outright lie that the Clean Power Plan relied on regulatory techniques never used before, and the EPA constructed an unsupportable legal theory to justify its repeal," said Richard Revesz, director of the Institute for Policy Integrity at New York University's School of Law.

The Department of Health and Human Services' insidious new policy, known as the Sunset Rule, commits it to reassessing the economic impacts of almost every one of the department’s existing regulations and establishes an extreme penalty for noncompliance: If a regulation is not reviewed by its 10th anniversary, it simply blinks out of existence. HHS claims the power to repeal thousands of rules at once without so much as explaining what they do, much less justifying the harm that could arise in their absence.

Trump administration policies can be undone using the same aggressive techniques that the administration itself used. The primary tools that President Trump relied on, such as executive orders and guidance, do not make for permanent or durable U.S. policy. And many Trump-era regulations were poorly executed and supported, making it easier to undo those rules.

"It’s fitting that, on the Trump administration’s last full day in office, the D.C. Circuit forcefully struck down the signature item of its environmental agenda, which has brought enormous harm to the health of the American people, to the environment, and to the competitiveness of our economy," said Ricky Revesz, director of the NYU School of Law's Institute for Policy Integrity, which opposed the ACE rule.

The federal auto regulator said this week it would delay an increase in fines imposed on manufacturers that fail to meet emissions standards designed to curb global warming, even after the Trump administration has lost two lawsuits over the issue. Richard Revesz, a law professor at New York University, said the agency’s action was “directly inconsistent” with a ruling last year by a federal appeals court in New York. “In an administration that has taken many outrageous actions to compromise the health of the American people and the environment, this one stands out as an example of rampant lawlessness,” said Revesz, director of the Institute for Policy Integrity, which was involved in the litigation.

For the Biden administration, this power to quickly revoke Trump rules without having to go through an onerous rulemaking process or potential litigation further illustrates the groundbreaking importance of the Georgia Senate races. And Trump rules that were not submitted to Congress are also fair game; this is very possible considering how woefully inept the Trump administration was at properly adopting rules (a 20% success rate, according to the Institute for Policy Integrity).

Eight days before President Donald Trump leaves office, the EPA published a rule on 13 January that sets 3% of total gross US greenhouse gas (GHG) emissions as the significant threshold at which the agency can regulate releases of these pollutants. Below that level, the EPA said no endangerment of public health would ensue. "The final rule violates the APA because it isn't a logical outgrowth of EPA's 2018 proposal and the public didn't get a meaningful opportunity to comment on the 3% threshold for significance," Jack Lienke, regulatory policy director at the Institute for Policy Integrity and an adjunct professor at NYU School of Law, said.

In a surprise move yesterday, the EPA posted a final rule that does nothing to change Obama-era carbon regulations on new power plants. Instead it doubles down on an issue that was raised only in a footnote in the December 2018 proposal: whether EPA should create a new metric for which industrial sectors contribute to climate change enough to trigger regulation. Environmental lawyers predicted that the Biden EPA would have little difficulty dispensing with it. "I think there's very little practical effect," said Jack Lienke, regulatory policy director at the Institute for Policy Integrity at New York University School of Law. "It's a banana peel, and the Biden administration is very unlikely to slip on it, I trust."

EPA Administrator Andrew Wheeler has said flatly that the science transparnecy rule is a minor “housekeeping” matter, not eligible for the CRA, but legal experts disagree. “The idea that you could take one of the most important regulations ever done in environmental law, one that could conceivably lead to tens of thousands of additional premature deaths every year, and call it a ‘housekeeping’ measure—it’s preposterous,” said Richard Revesz.