How Well Is EPA Actually Doing on Deregulation?

There is little doubt that the Trump Environmental Protection Agency is trying to roll back a number of Obama’s environmental regulations. And there is also little doubt that many deserve to be partially or fully withdrawn because they are not improving the environment or have so few economic benefits that they do not justify the costs. But there is a difference between announcing that another regulataion is to be rolled back and actually achieving deregulation. In actual reregulation, the wording of the regulation must be changed; in announcements, the only result is a statement of intent. Statements of intent are a necessary part of deregulation, but often not very important in the end. The regulatory (or deregulatory) process is long and difficult, as it should be. New regulations (including changes to accomplish deregulation must jump through a long series of hoops.

In many cases the last hoop, overcoming legal challenges in the courts, is usually the most important one. In court challenges, the courts decide whether the Agency has followed the intent of the substantive law under which the regulation is being proposed and whether the Agency has followed all the required procedural steps required. In most cases the challenges will be heard at the Federal District court level or by the DC Circuit Court of Appeals. Often the losing side appeals the decision to higher courts, including the Supreme Court. This process can take a number of years, particularly if the issues go to the Supreme Court. But it is only after the court reviews have been completed that one can say that the new or revised regulation has become a settled regulation.

An illustration of this is provided by the most important of the Obama regulations that imposed very expensive and counter productive regulations on power plant emissions of greenhouse gasses. In this case the regulations are implementing an Obama “Endangerment Finding” or EF, a regulation claiming to show that increases in greenhouse gas emissions endanger public health and welfare by increasing global temperatures. As discussed previously in my climate book and on this blog, the Finding is simply bad science. But as long as the Finding is on the books, EPA is required to propose and enforce regulations that will reduce such emissions. This spells trouble for any attempt to remove or lessen the regulations on greenhouse gas emissions. But so far EPA has chosen to avoid any effort to reconsider or wipe out the EF. Without such a change any effort by EPA to reduce or eliminate controls on greenhouse gas emission regulations is likely to founder at this last step, court review.

There is a possible downside to trying to revoke the EF from the viewpoint of Republicans. The Republicans may be concerned that they will lose votes if they pursue repealing the EF. Most people do not care about regulation of CO₂ emissions, but there is a vocal minority that do. So for this or other reasons the Trump EPA has not revoked or even started reconsideration of the EF, which it must do if their proposed rollback of the greenhouse use gas regulations is to actually occur. One reason may be that they believe they are in danger of losing their majority in the House of Representatives this fall if Republican candidates lose votes as a result of possible reeconsideration of the EF.

I suspect this may explain why the Trump Administration has not yet undertaken this vital effort to reconsider the EF. If the Republicans should retain control of the House as a result of the upcoming mid-term elections, maybe the Trump Administration would find the backbone to overturn the EF. But on the other hand, maybe they would continue to think that they can avoid the major scientific issues. But if they are to eliminate the EF they will have to take on these issues directly. So far, they have chosen not to do so. So the Trump Administration has done a good job of announcing various deregulatory changes, but have not been as effective in actually repealing regulations, particularly in such a way that the revised regulations will withstand judicial review.