In the News

Some take issue with how Mr. Trump’s OIRA, which sits within OMB, conducts cost-benefit analysis of regulations. Richard Revesz of NYU Law School argues that in its deregulatory zeal, the Trump administration has “made a mockery of cost-benefit analysis [by] weighing broader indirect costs [of regulation], and insisting on ignoring any indirect benefits”. In delaying Obama-era environmental regulations, for instance, he argues that the administration has ignored or downplayed unquantified benefits, such as long-term improvements to air and water quality, while overstating the costs of compliance to industry.

Dozens of rule-makings have been rejected by courts as “arbitrary and capricious,” a phrase that denotes violations of the federal Administrative Procedures Act. “The agencies are really falling down on that front,” says Bethany A. Davis Noll, litigation director at New York University’s Institute for Policy Integrity. The institute’s database shows that the Trump administration has lost 66 of the 71 cases in which its deregulatory or policy initiatives have been challenged in court.

As the offshore oil industry’s federal regulator completed its overhaul of a major well-drilling safety rule in 2018, Scott Angelle, director of the Bureau of Safety and Environmental Enforcement, told a staff engineer to delete language from memos showing that the changes would contradict guidance from the agency’s own engineers. The internal correspondence could prove a liability, as environmental groups challenge the agency’s rationale for its decision. “What these communications show is that the agency was not relying on expertise,” said Richard Revesz, dean emeritus of New York University School of Law and an expert on environmental and regulatory legal matters. “It was making a political decision that went against the advice of the experts and the experts were being sidelined.”

Tax credits for companies that “capture” carbon dioxide have been a success, by some measures. Even before the expansion, companies have claimed hundreds of millions of dollars in tax credits—possibly as much as $1.3 billion—and reported 63 million tons of carbon dioxide kept out of the air. There’s one big problem, though. All of that carbon is supposed to be stored securely underground and monitored by an Environmental Protection Agency program, to be sure it doesn’t leak out or create other complications. But so far, only 17 million of those 63 million tons have been registered with the EPA as legally required—about one-quarter of the carbon that companies have taken credit for.

538: “What is your favorite statistic?”

Amy: “I think it would be how many times Donald Trump has had his agency decisions overturned. It’s extraordinary. It shows his lack of respect for the rule of law but also how he actually doesn’t get things done.”

According to NYU’s Institute for Policy Integrity, Trump administration agencies lost a court case or backed off their plans 66 out of 70 times when facing lawsuits over actions they’d taken. NYU Law Professor Richard Revesz told The New York Times that typical administrations lose suits over these actions about 30 percent of the time.

“You didn’t have the A team doing the analysis here… If you shut out the people who know what they’re doing, this is what you get,” Jack Lienke, a law professor at NYU and the regulatory-policy director at the Institute for Policy Integrity, told me. “If the experts—who are actually within the agency issuing this proposal—thought that the assumptions being made were unreasonable, that makes a judge a lot more comfortable saying it is arbitrary and capricious.”

It is impossible to ignore the incongruity of the Trump administration’s latest attack on environmental protection with the dire effects of climate change now being felt around the world. Thousands have fled burning towns in Australia and California, helpless in the face of catastrophic wildfires, and Arctic sea ice is declining at an unprecedented rate. Rather than develop even modest solutions to this grave crisis, the Trump administration has focused its efforts on a newly unveiled proposal to weaken the United States’ bedrock environmental law, the National Environmental Policy Act, enacted in 1970.

Trump’s efforts to cut regulatory red tape have been praised by industry. But they have so far largely backfired by triggering waves of lawsuits that the administration has lost in court, according to a running tally by the New York University School of Law’s Institute for Policy Integrity.

The White House on Thursday will introduce the first major changes to the nation’s benchmark environmental protection law in more than three decades. Richard L. Revesz, a professor of environmental law at New York University, said he did not believe the changes would hold up in court. In fact, he argued, it is more likely that federal agencies will be sued for inadequate reviews, “thereby leading to far longer delays than if they had done a proper analysis in the first place.”

When a cost is placed on CO2 — either explicitly, through a tax or cap-and-trade system, or implicitly, by subsidizing clean competitors — the result is a more effective market, not a “distorted” one. Externalities have been internalized. It is the companies that aren’t being charged for CO2 pollution that are distorting the market. (The Institute for Policy Integrity has a good report on Capacity Markets and Externalities.)