A few weeks ago, we outlined the Trump administration’s rollback of the Clean Water Rule — an Obama era proposal that expanded the definition of “waters of the United States” under the Clean Water Act. This past week saw the administration continue on that theme, deregulating the Obama era agenda. On Thursday, July 20, 2017, the administration released its semi-annual Unified Agenda of Regulatory and Deregulatory Actions — a report on the actions that administrative agencies plan to issue in the near and long term (i.e., information about regulations that the Government is considering or reviewing). Traditionally, the agenda has been about new regulations as opposed to the elimination of regulations. The Unified Agenda of this administration though “represents the beginning of fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burden on the American people.” The overarching intent — economic growth: “By amending and eliminating regulations that are ineffective, duplicative, and obsolete, the Administration can promote economic growth and innovation and protect individual liberty.”
In a nutshell, the administration’s Unified Agenda shows that federal agencies withdrew 469 actions proposed in the fall 2016 agenda (the Obama administration) and reconsidered 391 active actions by reclassifying them as long-term and inactive. Regulations categorized as “economically significant” fell to 58, which is about 50 percent less than in the fall of 2016. And for the first time, agencies will be required to “post and make public their list of ‘inactive’ rules, providing notice to the public of regulations still being reviewed or considered.” But what regulations has this administration planned to do without, further consider, and/or review?
The list of rules placed on the inactive list is impressive, spanning many agencies and industries. For purposes of this blog, we’ll focus on a few that concern the environment. The 2017 Inactive Actions list feature most prominently rules falling under the umbrella of the Department of Agriculture and the Department of Environmental Protection. For a limited example, Agriculture listed the following programs, procedures and directives as inactive:
- The Emergency Conservation Program;
- The Wetlands Reserve Program;
- The Environmental Quality Incentives Program;
- The National Environmental Policy Act Implementing Procedures;
- Forfeiture Procedures Under The Endangered Species Act and the Lacey Act Amendments;
- many initiatives under the National Organic Program; and the
- Water Quality Management and Best Management Practices for Water and Soil Conservation directive.
About the same as the Department of Agriculture, the EPA placed close to 100 actions on the inactive list. Again, as a limited example, the following were relegated to inaction:
- Financial Responsibility Requirements Under CERCLA Section 108(b) for Facilities in the Chemical, Petroleum and Electric Power Industries;
- CERCLA/EPCRA Reporting Requirements for Air Releases of Hazardous Substances from Animal Waste at Farms;
- National Volatile Organic Compounds (VOC) Emission Standards for Consumer Products;
- National Emissions Standards for Hazardous Air Pollutants (NESHAP): General Provisions, and Amendments for Pollution Prevention Alternative Compliance Requirements;
- New Source Performance Standards (NSPS) and Emission Guidelines (EG) for Large Municipal Waste Combustors (MWCs) — Risk and Technology Review;
- Noise Emission Standards for Transportation Equipment: High Speed Rail;
- Control of Air Pollution From Aircraft and Aircraft Engines: Proposed GHG Emissions Standards and Test Procedures;
- Lead Fishing Sinkers—Manufacturing, Processing, and Distribution in Commerce;
- Groundwater and Pesticide Management Plan Rule;
- Lead-Based Paint Activities (Bridges and Structures; Training, Accreditation, and Certification Rule and Model State Plan Rule);
- Pesticides—Registration Requirements for Antimicrobial Pesticide Products; and
- Hydraulic Fracturing Chemicals and Mixtures.
In today’s political environment, reactions to the Trump administration’s Unified Agenda were easily predictable: vitriolic and praiseworthy. Critics railed: “These rollbacks of critical public protections will leave American workers, consumers and children vulnerable on a daily basis to risks such as air and water pollution, unsafe products and tainted food, dangerous workplaces and a newly deregulated Wall Street that once again could threaten economic collapse,” said Public Citizen’s Congress Watch. The head of OSHA under the Obama administration had pointed words too: “Clearly, what this administration is saying is that no further work will be done on health standards.”
In contrast, a former CBO director stated that the Trump administration’s action here was “perfectly sensible” in order to reexamine the Obama administration’s “overreach.” He cited to a recent study by the American Action Forum that estimated that the Obama administration’s regulations imposed a “cumulative burden” of $890 billion in compliance costs.” EPA spokeswoman Liz Bowman defended the actions, indicating that the withdrawal of regulations illustrated the Trump administration’s “commitment to refocusing the agency on [its] core mission of protecting the nation’s air, water and land while reducing unnecessary regulatory burdens on Americans.”[7] And the OMB Director noted that many of the federal requirements subject to the rollback are not particularly “glamorous” and none of them really should “rise to the level of getting national attention.” Industry appeared to support the administration’s moves. A recent survey of the National Association of Manufacturers’ membership rolls indicated that 80 percent believed the Trump administration’s “actions on regulation are headed in the right direction.”
The President promised to cut two regulations for every new one. In less than seven months, it appears that he has underestimated his administration’s ability at deregulation. According to top officials, the ratio thus far is closer to 16:1 (rather than 2:1). “The bare numbers will show that the Trump administration has withdrawn or removed from active status” 860 regulations so far. Add the most recent inactive list to other headline-grabbing intentions like rolling back the Clean Water Rule, the Clean Power Plan, and withdrawing carbon dioxide emissions standards for new and modified power plants, we are seeing and hearing a different regulatory tune out of Washington.
We will monitor the effects — positive, negative, and nil — these rollbacks have on environmental concerns.