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New York University’s Institute for Policy Integrity non-partisan think tank met with OMB officials Aug. 28 to reiterate its concerns about the proposed rule’s cost-benefit analysis. Former EPA officials, state drinking water regulators and water utilities have also raised concerns about the complexity of the proposed rule and whether it can be implemented well.

The election campaign is a good time to take record of Trump’s actual handling of the environment. In short, it could be much worse. He’s lost 85% of his administration’s legal attempts to roll back environmental regulations, according to Richard Revesz of New York University, one of the nation’s leading experts on environmental law. That’s compared to an average win rate of 70% for past administrations. “It’s a really, really bad record,” Revesz said.

Although the courts over the last century have permitted greater delegation of legislative authority to executive agencies and have generally deferred to agency interpretations of vague statutes, courts may be moving to hold agencies more accountable. According to the Institute for Policy Integrity at the New York University School of Law, a large percentage of lawsuits challenging Trump Administration regulations have succeeded in court. Obama Administration rules also faced setbacks in court, as judges increasingly expected agencies to justify their actions with benefit-cost analysis.

The death of Supreme Court Justice Ruth Bader Ginsburg could lead to a more conservative bench that backs some Trump rollbacks. A new administration, however, could drop the government’s defense of cases still in court, or stop work on unfinished rules. “You need two terms as a president now to have long-lasting regulatory change,” says Bethany Davis Noll, litigation director at New York University’s Institute for Policy Integrity.

When EPA moved to lock in a national rollback of long-standing hazardous pollutant requirements last year, officials saw no need to study the effects on environmental justice communities despite a 1994 executive order requiring agencies to assess environmental justice concerns. At the Institute for Policy Integrity, a think tank based at New York University School of Law that opposes the policy's repeal, Jack Lienke noted that the executive order is not legally enforceable. But in light of a 2015 Supreme Court decision saying agencies had to incorporate cost considerations into their rulemakings, EPA's move could be vulnerable on the grounds that the agency ignored the possible costs associated with the health damage accompanying higher levels of toxic emissions, said Lienke, the institute's regulatory policy director.

While Trump has sought to tear up the country’s climate regulation, his efforts have been met with major challenges. Because Massachusetts vs EPA still stands, the administration is still technically responsible for fighting climate change, and his rollbacks need to show sound legal and scientific reasoning—which can be hard to come by given Trump’s primary motivation has little to do with science or law. This reality has tied up many of his deregulatory moves in the courts. The administration has only succeeded in 15 of the 87 attempted rollbacks that have been litigated, according to data from the Institute for Policy Integrity.

Almost all of Trump’s attempts at deregulation—some 100 rules that he’s tried to eliminate or weaken—are being challenged in court, and environmentalists are steadily winning. According to the Institute for Policy Integrity at New York University, the Trump administration has lost 69 of the 83 legal challenges it’s faced in its deregulatory blitz. 

The Supreme Court's five conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Kavanaugh and Chief Justice John Roberts — have also indicated at times that they may be open to reviving the nondelegation doctrine in some way, noted Richard Revesz the director of the Institute for Policy Integrity at the New York University School of Law. That seldom-used legal theory holds that Congress cannot delegate its powers to administrative agencies. "I do worry a fair amount about what a new justice might do in connection with the nondelegation doctrine and the impact that might have not only on regulation in [energy and climate] but on regulation across a whole slew of federal regulatory programs," Revesz said.

Administrations usually win 70% of the cases brought against them, but Team Trump has won only about 16% of the 132 decided lawsuits. “Over and over and over the Trump agencies are doing things that are outside the bounds of their statutory authority,” said Bethany Davis Noll, litigation director of the Institute for Policy Integrity at the New York University School of Law. Even when the cases were heard by judges appointed by Republicans the Trump administration only won 35% of its cases, Noll found in data she is compiling for a forthcoming paper. They won about 8% of the cases heard by judges appointed by Democrats.

Almost all of Trump’s attempts at deregulation — some 100 rules that he’s tried to eliminate or weaken — are being challenged in court, and environmentalists are steadily winning. According to the Institute for Policy Integrity at New York University, the Trump administration has lost 69 of the 83 legal challenges it’s faced in its deregulatory blitz.