New Analysis Exposes the Trump Administration's Rulemaking Delays

Early in the Trump administration, news about delayed and "disappeared" rules emerged in several media outlets. Many of these delays were driven by a memo issued by Trump White House Chief of Staff Reince Priebus on January 20, 2017, which "froze" the implementation of rules until March 21, 2017, so that a representative of the administration could review them. Freezing rules for a limited amount of time is standard practice for newly inaugurated presidents. But the White House and agency administrators like the Environmental Protection Agency's (EPA) Scott Pruitt soon decided to move beyond the Priebus memo to impose further delays, some as long as a year or two, so that industry-friendly changes could be crafted without having to undergo the full rigor of a rulemaking process. Many of the targeted Obama-era rules were designed to protect public health, worker and consumer safety, and the environment. 

Earlier this month, however, a July 3 decision by the D.C. Circuit Court of Appeals in Clean Air Council v. Pruitt blocked Pruitt's decision to delay a rule requiring reductions of methane and other greenhouse gas emissions, thus limiting the Trump administration's discretion to put rules on hold without any explanation. 

To get a better sense of just what the Trump administration has put on hold, we prepared a chart that lists and describes every rule for which a Federal Register notice was published announcing a delay in either the effective date or the compliance date or both. The delays included in the chart involve postponements beyond July 14, 2017, and the list covers the period from January 20, 2017 to July 14, 2017. The chart does not include the universe of rules "frozen" by the Priebus memo until March 21 without any further announced delays, but after we've reviewed those rules, we plan to update the chart as soon as possible. 

The list of delayed rules paints a distressing picture of enormous postponed benefits to public health, natural resources, and worker and consumer safety. The bottom line is that regulations save lives, prevent illness, and preserve irretrievable natural resources. Deregulators ignore these benefits and talk only about costs, an absurdly self-serving approach. If a company upstream of our drinking water supply dumps a toxic chemical into the water and people get sick downstream, someone has to pay for their treatment. Without admitting this obvious point, deregulators worry only about imposing costs on the company that did the dumping and ignore the plight of the innocent bystanders downstream. Protective regulations don't sweep money in a pile and burn it, leaving only a pile of ashes on the ground. Rather, they impose those costs on those responsible for the pollution so that drinking water is safe and downstream users are not sickened. 

Deregulators have a huge blind spot on benefits, but this inexplicable omission is not the only problem with their approach. As the D.C. Circuit opinion in Clean Air Council reminds us, when Congress writes a law giving expert agencies authority to issue rules that carry out their missions to protect the public, they are not allowed to wheel on a dime and abandon those efforts simply because a new president has said he doesn't like what they are doing. Instead, the president should return to Congress and discuss ways to modify the law to change the agency's mission. If the president wins a majority, the law will change.  

Alternatively – and this concept is the only alternative contemplated by the Constitution's separation of powers – agencies must develop a science-based, fact-driven rationale for changing the rules. Saying that Donald Trump was elected and he wants us to indefinitely shelve requirements imposed by the previous administration defies the rule of law. Before EPA Administrator Scott Pruitt or any other political appointee can suspend the application of any rule, no matter how much industry opposition it has engendered, they must explain why the issues and information compiled during the rulemaking, or any new related information, justified those decisions. 

We have little doubt that the rule of law will prevail as these irresponsible decisions are litigated one by one. We can only regret that further delays will harm the people the rules were developed to protect.