Trump faces major hurdles for rescinding rules under the Administrative Procedure Act

February 01, 2018
Bookmark and Share

President Trump's deregulation push faces an arduous process under the Administrative Procedure Act which could test the administration's commitment, and its dedication of resources, to carrying out its pledge for rescinding a host of existing regulations, according to former officials from both Republican and Democratic administrations.

“This is one area where Trump may have succeeded beyond his wildest dreams,” said Sally Katzen, who led the Office of Information and Regulatory Affairs for the Clinton administration. Katzen was referring to Trump's directives for capping and reducing regulatory compliance costs for businesses from new rules, while stressing the administrative hoops agencies will have to go through to rescind existing requirements.

“It is unlikely that any of the independent regulatory agencies are going to issue new regulations that are an anathema to the Republican agenda,” Katzen said. But to revise or rescind an existing rule, “an agency has to go through the various steps set out in the APA,” according to Katzen.

“That means it has to prepare and publish a notice of proposed rulemaking, receive and review comments from the public on that proposal, and then address the significant issues raised in those comments and produce a statement providing a reason and basis for the revision or rescission,” she said in an interview with Inside Washington Publishers.

The Trump administration's early actions on deregulation involved suspending a number of proposed rulemakings and delaying the effective date of pending Obama-era rules, as well as the repeal of more than a dozen recently issued regulations through use of the Congressional Review Act, a rarely used Clinton-era law that allows Congress to repeal new regulations within 60 days of issuance, with support from the president.

But those early steps to freeze or suspend regulatory actions have given way to the heavier lift required by the notice-and-comment process laid out by the APA.

“We're going to have an entire new body of law” on how to rescind existing regulations, said John Cooney, who served in the Reagan administration.

Cooney noted that public interest groups and Democratic state attorneys general are already trying to slow the Trump administration's deregulatory efforts by opposing efforts to have the courts remand rules back to their agencies for overhaul or rescission. Many of these Obama-era rules were challenged by Republicans, but now Democrats are taking a page from the GOP playbook to slow the remand of these regulations for deregulatory action, according to Cooney, who was deputy general counsel for the White House Office of Management and Budget.

But a legal model for the Trump administration to rescind existing rules under the APA has not yet emerged, according to Cooney.

“We don't have the bellwether case that will determine the rules” for repealing existing requirements “that will guide all future administrations when they think about revoking the rules of their predecessors,” Cooney said.

The Trump administration detailed its plans for withdrawing regulations in the latest regulatory Unified Agenda issued in December, setting the schedule and stage for what are expected to be a number of ongoing and upcoming battles between industry and public interest groups that will play out through the public-comment process and likely the courts.

White House officials did not respond to two requests for comment on this story.

The Trump administration's regulatory agenda “reflects a fundamental shift” by requiring federal agencies to cap and then reduce compliance costs for industry and to identify “outdated” or “unnecessary” regulations for elimination as a precondition for issuance of any new regulations.

“Accordingly, in 2018, across the administration agencies anticipate eliminating and streamlining approximately three regulations for each new one imposed,” said Office of Information and Regulatory Affairs Administrator Neomi Rao in the introduction to the regulatory agenda. OIRA, which is part of the White House Office of Management and Budget, will play a central role in reviewing agencies' proposals for withdrawing rules as part of its responsibilities for overseeing the federal rulemaking process.

OIRA has “implemented enhanced categorization” for the latest regulatory agenda to “identify actions anticipated to be regulatory or deregulatory,” according to Rao.

Those regulations slated for “rescission” include a Bureau of Land Management rule for hydraulic fracturing on public lands, Occupational Safety and Health Administration requirements for tracking workplace injuries and illnesses, an Environmental Protection Agency rule for managing risks from the accidental release of chemicals or other dangerous materials, and the EPA's rule for reducing carbon and greenhouse gas emissions from electric power plants – one of the most high-profile proposed repeals by the Trump administration.

Public interest groups tracking the administration's deregulation efforts say these proposed withdrawals will offer some of the earliest indications of the administration's ability to use the APA to rescind existing requirements.

EPA's proposal for withdrawing its greenhouse gas rules was issued in October, with final action slated before year's end. BLM issued its final rule for rescinding its hydraulic fracturing regulations in December, and a coalition of environmentalists led by Earthjustice filed suit to block the action on Jan. 24.

The process the Trump administration will have to follow was laid out in a 1983 Supreme Court case involving automakers and State Farm Mutual Automobile Insurance. The high court struck down a decision by the Reagan administration to revoke automobile safety requirements, ruling unanimously the decision was “arbitrary and capricious” because the administration failed to adequately show why the rules were no longer needed.

The administration "failed to present an adequate basis and explanation for rescinding the requirement, and must either consider the matter further or adhere or amend the standard along lines which its analysis supports," according to the Supreme Court decision.

“We'll have to see if the Trump administration is committed to meeting that high bar in the upcoming challenges” it will face as it moves toward final decisions on its proposed regulatory repeals, according to a former Obama administration official.

Katzen said the administration will have to demonstrate to the courts why it is changing an existing rule, which will take time and resources.

“To revise or rescind an existing rule, an agency has to go through the various steps set out in the APA,” Katzen said. “That means it has to prepare and publish a notice of proposed rulemaking, receive and review comments from the public on that proposal, and then address the significant issues raised in those comments and produce a statement providing a reason and basis for the revision or rescission. In addition, under applicable executive orders, it must demonstrate that the benefits of the revision justify the costs.”

“The agency must compile a record on which it is relying and explain why facts it had previously relied on are no longer reliable or relevant,” Katzen said. “The courts expect an agency to be explicit about what it's doing and why, taking into account what it has done in the past.”

She said this can be “a very high hurdle, especially when the rule is based on science that has not changed. It takes time, it takes resources, and sometimes it takes ingenuity.”

Katzen also questioned whether the Trump administration has made an adequate commitment in resources to carry out its pledge for eliminating existing rules.

“In order to go through that process, agencies need people who know what they are doing, and how to do it,” Katzen said, adding: “Trump has been slow in appointing people below the most senior officials who know what they are doing.”