In the News

A significant concern of administrative law is the status of independent agencies—agencies that are insulated in some ways from direct presidential control. These institutional relationships are particularly important when the President and agency officials disagree over law and policy. In our recent article, The Genesis of Independent Agencies, we ask a core question of administrative law: When are agencies established with features that insulate them from direct presidential control?

Eliminating regulatory safeguards will erase tangible public health and environmental benefits, making the public worse off. Rather than analyze these societal costs, President Trump’s agency heads have suspended rules in a flurry of deregulatory actions, without calculating or even acknowledging the effects.

“A new delay would essentially amount to an effective repeal and that is something that would have to be justified,” Bethany Davis Noll, an attorney with the Institute for Policy Integrity at the New York University School of Law, tells the publication. “Labor has a huge burden to overcome if they want to delay this.”

Under Republican Gov. Larry Hogan, Maryland has petitioned the Environmental Protection Agency for help bringing ozone pollution in the state to a safe level. Granting this request should be a no-brainer for EPA Administrator Scott Pruitt.

It’s already been almost 17 years since the EPA first concluded that it should issue a rule limiting mercury emissions from coal- and oil-fired power plants. It’s been more than five years since the agency actually did issue such a rule. And it’s been more than two years since the nation’s power plants started complying with the rule. All along the way, the EPA, states, power companies, and public health and environmental groups have been fighting about the rule in court. They show no signs of stopping anytime soon.

It’s no secret that the Trump administration would like to undo as much of Obama’s environmental legacy as possible by rescinding or repealing regulations. Under the law, that process is difficult, but Trump’s agency heads now seem to be looking for an easy way to undo rules without officially rescinding or repealing them.

Most of us employ informal cost-benefit analysis (CBA)—or what Benjamin Franklin described as weighing pros and cons—whenever we make decisions in our daily lives. It seems fair to expect federal agencies to do the same when considering new rules. Surprisingly, though, some agencies, including the Federal Communications Commission (FCC), are not required to engage in CBA before issuing a rule.

President Donald Trump and newly confirmed EPA administrator Scott Pruitt appear poised to make sweeping environmental policy changes. But strong environmental regulations remain widely popular. Perhaps as a result, the Trump administration may take a subtle approach in attacking environmental rules. Pruitt and other administration officials appear interested in rewriting guidelines for regulatory analysis and they could cook the books so that environmental protections appear to have few or no benefits and exaggerated costs. The results would be sinister, undermining many current and future safeguards for the environment, workplace safety and other important social issues.

Appellate Judge Neil Gorsuch has been a vigorous critic of the so-called “Chevron doctrine” that gives federal agencies latitude when interpreting ambiguous laws. “Chevron deference became really important in the later part of the Obama administration because Congress hadn’t acted on a number of environmental issues in a while,” said Denise Grab, a senior attorney with Institute for Policy Integrity at New York University School of Law.

The Mercury and Air Toxics Standards, also known as “MATS,” are the culmination of a very long regulatory process.