In the News

“The rollback of the vehicle emissions standards is based on analysis that is shoddy even by the shockingly unprofessional standards of Trump-era deregulation,” said Richard Revesz of the Institute for Policy Integrity and dean emeritus at New York University School of Law.

When the civil servants were directed to undo Obama’s Clean Power Plan and create a more coal-friendly version, some of those who remained at the EPA made sure the documents accompanying the proposed replacement included the fact that increased coal pollution would cause 1,400 new premature deaths a year. The EPA later deleted the number from the final rule, but Richard Revesz, an expert on environmental law at New York University, said it would still play a role in the legal fight against the rollback. “That number was a devastatingly bad conclusion for the administration,” he said.

With an election looming, the urgency of completing regulations is real. Under the Congressional Review Act, Congress can overturn a regulation or federal rule within 60 days of it being finalized. If Democrats win control of the White House and Senate in November, and keep control of the House, any rule completed after late May or early June would be vulnerable. “The administration understands the electoral map has turned against it,” said Richard Revesz, a professor of environmental law at New York University.

Using three instruments—Congressional Review Act disapprovals, requests that courts hold in abeyance pending cases challenging Obama-era regulations, and suspensions of final regulations—the Trump Administration was able to reach a far greater proportion of regulations than would have been possible under prior practices. And in this way, the Trump Administration has ushered in a new era of aggressive regulatory rollbacks that is likely to become an enduring feature of American politics and to radically change the nature of the presidency.

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.”