In the News

Outgoing EPA Administrator Andrew Wheeler delivered a parting gift for his successor in the form of a new regulation: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process. This Trojan Horse rule appears innocuous at first glance, but further examination reveals a deeper mischief. Understanding that mischief requires context, well-provided in a 2019 article by Professor Revesz and Kimberly Castle published in the Minnesota Law Review.

Four years ago, President Trump launched his deregulatory push with gusto. So far, the Trump administration has lost 83% of legal challenges to its regulations, guidance and agency memorandums, according to statistics compiled by the Institute for Policy Integrity at the New York University School of Law. "It's pretty shoddy," said Bethany Davis Noll, litigation director for the NYU institute. "There are all these cases they lost at the beginning, and then only this year have we seen the big rollbacks. Since Trump didn't win reelection, the administration isn't going to be able to defend those in court."

"This is an internal housekeeping regulation...and so the Congressional Review Act is not applicable," said EPA Administration Wheeler on Jan. 5. But that view was disputed by Richard Revesz, director of the New York University Law School's Institute for Policy Integrity. "The decision-maker on what is subject to the CRA is a majority of the House and a majority of the Senate, not Administrator Wheeler," said Revesz.

The Trump administration lost a mountain of critical cases and failed to get most of its top priorities across the legal finish line. “The biggest rules are still being litigated, and that doesn’t help solidify a legacy for this administration,” said Bethany Davis Noll, litigation director for New York University’s Institute for Policy Integrity.

The Congressional Review Act requires a simple majority of the House and Senate and the president’s approval. Rules that were published after Aug. 10 could be axed by Congress. “It’s the quickest way to get rid of policies that will cause significan harms to the health of Americans and to the quality of our environment,” said Richard Revesz.

“The Congressional Review Act is a very attractive tool,” says Richard Revesz of the New York University School of Law. “It would make sense to be able to just clear the underbrush of some of this really, really bad regulatory policy, quickly. But there may be some tradeoff between Senate time devoted to the CRA and Senate time devoted to confirming executive branch officials.”

The more rules that Trump’s agencies destroy in his last few days in office, the bigger the challenge facing the Biden administration to pick up the pieces. Trump’s real intention is “to clog up the works and slow the Biden administration down,” said Richard Revesz, an environmental regulatory expert at New York University’s Institute for Policy Integrity. “Repealing and replacing them will take time, and will tie up agency resources."

The impending power shift in the Senate means Congress will once again turn to the Congressional Review Act to scrap a bevy of regulations. Hill Republicans and President Trump used the CRA to kill 16 Obama-era rules in 2017. Democrats, in contrast, have never deployed the CRA. "It's the quickest way to get rid of policies that will cause significant harms to the health of Americans and to the quality of our environment," said Ricky Revesz, a New York University professor whose name has been mentioned as a possible Biden regulatory chief.

EPA Administrator Wheeler said the Congressional Review Act can’t be used because the rule is “an internal housekeeping regulation that does not affect external people to the agency,” and because it isn’t economically significant, meaning it isn’t expected to have an annual effect on the economy of at least $100 million. But Richard Revesz cast doubt on that analysis. “Whether a rule qualifies for disapproval is up to Congress to determine,” Revesz said. “Wheeler’s views are entitled to no deference. The decision is not up to him.”

New York University Law professor Richard Revesz said the new rule will likely be overturned by the courts, Congress or by the incoming Biden administration, but cautioned the damage in the near term is significant. “I would be very surprised if this rule is in effect in two years, but it will create burdens and difficulties in the meantime,” he said.