In the wake of Donald Trump’s election as the next president of the United States, questions have been raised regarding the fate of federal regulatory actions taken by the current administration. Recent Environmental Protection Agency (EPA) actions are of particular interest because EPA has adopted a number of very high profile and highly impactful regulations. Commenting on EPA during the campaign, Mr. Trump stated that “[w]e are going to get rid . . . of [EPA] in almost every form. We’re going to have little tidbits left but we’re going to take a tremendous amount out.” While Mr. Trump later softened this stance by stating that he would “refocus the EPA on its core mission of ensuring clean air, and clean, safe drinking water for all Americans,” these statements illustrate that the Trump administration will almost certainly seek to roll back at least some of President Obama’s ambitious environmental initiatives. While Mr. Trump vows to reduce EPA’s size and repeal business-burdening regulations, these changes will not occur overnight. The following sections discuss ways in which an incoming administration may halt or repeal its predecessor’s actions.
Common Practice: Claw-Back Memos
Recent presidents have acted fairly quickly following their inauguration to halt very recent rulemaking activity. For instance, on inauguration day, the chiefs of staff for both President Obama and George W. Bush sent a memorandum (Claw-Back Memo) to outgoing agency heads addressing the new president’s plan for ensuring that new appointees have the opportunity to review recent regulatory actions. These memos can be accessed here and here.
Claw-Back Memos cover a fairly limited universe of agency actions. They generally direct outgoing agency heads to do the following:
- Refrain from sending proposed or final regulations to the Office of the Federal Register (OFR) unless and until new agency heads review and approve the actions.
- Withdraw regulations that have been sent to the OFR but have not yet been published in the Federal Register; and
- Temporarily postpone effective dates of rules that have been published in the Federal Register but have not yet taken effect.
Claw-Back Memos typically exclude regulations promulgated pursuant to judicial or statutory deadlines.
Repeals Through Rulemaking
While the Trump Administration may follow this precedent, it will likely seek to rescind or significantly amend a number of high profile Obama EPA regulations that fall outside of the rules covered by the Claw-Back Memos. In particular, the Clean Power Plan and Waters of the U.S. rules, among a number of other significant regulations, will likely be targeted. The Administration, however, will be required to undertake formal notice-and-comment rulemaking to repeal or rescind these rules, and initiation of that rulemaking process cannot begin until the Administration goes through the process of identifying, vetting, and getting congressional confirmation of an EPA Administrator and senior EPA staff.
Environmental organizations and others are likely to strenuously fight the Administration on rescinding or amending these regulations, and litigation is almost certain. Hence, the rulemaking process is likely to consume much of 2017 and beyond, and the litigation will go on years after that. These groups are also likely to pursue citizen suit enforcement actions in favorable jurisdictions against both EPA and the regulated community.
The new Administration is also likely to want to demonstrate that it is streamlining the regulatory process in general, and hence it may be willing to consider eliminating a number of regulations that have a lower public profile but that still burden business. Members of the regulated community should immediately begin identifying regulations that they believe should be repealed or amended so that they can be added to lists that will undoubtedly be developed by Trump transition personnel as targets for future action.