REGULATORY REFORM: CURRENT PERSPECTIVES
| Jurisdiction | United States |
(Feb 2019)
REGULATORY REFORM: CURRENT PERSPECTIVES
former General Counsel, National Oceanic and Atmospheric Administration
U.S. Department of Commerce
Member, Clark Hill PLC
Washington, D.C. & Lakewood, CO
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JANE C. LUXTON is a member of Clark Hill's Environment, Energy, and Natural Resources Practice Group based in the Washington, DC office and chairs the firm's Administrative Law Practice. Jane has extensive experience in environmental, regulatory, policy, and litigation matters, including federal and state environmental laws as well as international environmental regimes. From 2007-2009, she served as general counsel of the National Oceanic and Atmospheric Administration. Her previous government service includes appointments as a Senior Trial Attorney at the U.S. Department of Justice, Special Assistant U.S. Attorney, and Attorney Advisor at the Federal Trade Commission. She is a recipient of the Attorney General's Award and the Commerce Department's Gold Medal Award for her work while in government service. During her time in private practice, Jane has regularly been recognized as a leading practitioner of environmental law by Chambers USA: America's Leading Lawyers for Business, was featured in Chambers Women in Law Profiles, and is listed in The Best Lawyers in America and the Washington, D.C. Super Lawyers rankings. She is a graduate of Harvard University and Cornell Law School. More information, including publications, is available at https://www.clarkhill.com/people/jane-c-luxton.
Presidents as far back as Jimmy Carter1 - and every one since - have championed the cause of regulatory reform to reduce the economic burden of unnecessary regulation, but none have made it a higher priority than the Trump Administration. On his first day in office, President Trump issued a Presidential Memorandum freezing all new regulations,2 and within a week adopted another on "Streamlining Permitting and Reducing Regulatory Burden."3 Multiple Executive Orders followed, along with the harder work of implementation across the federal government, all aimed at "deconstruction of the administrative state," in the colorful language of Presidential advisor Steve Bannon.4 A status check two years later reveals a mixed bag of results: many new rules stopped cold, some regulations reversed, a number of deregulatory actions mired in litigation, additional change delayed by a government shutdown and likely to face increased Congressional oversight, and a sense of urgency on the part of the Administration to complete as much as possible before the next election.
Rollout and Subsequent Steps
Clearly prepared to hit the ground running, the Trump Administration moved from its Inauguration Day freeze on any non-finalized regulations to a January 24, 2017, Memorandum directing
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the Secretary of Commerce, in consultation with relevant federal agencies, to initiate a process of outreach and comment solicitation on changes the federal government could make to streamline permitting and reduce regulatory burdens on domestic manufacturing.5 On the same day, reinforcing a campaign promise to rebuild infrastructure, the White House issued Executive Order ("EO") 13766 on Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects,6 which created a high-level interagency task force to designate "high priority" infrastructure projects and put them on a fast track, with expedited procedures and deadlines for completion of environmental reviews and permit approvals.
In quick succession, the Administration released a series of EOs operationalizing government-wide regulatory reform initiatives. On January 30, the President signed EO 13771 on Reducing Regulation and Controlling Regulatory Costs, which required that for every new regulation promulgated, two must be revoked, and that the incremental cost of any new regulation had to be offset by elimination of the costs of at least two existing rules.7 For fiscal year 2017, the net total regulatory cost increase for each agency could not exceed zero; for the following year, allowable incremental cost increases were to be set by the Office of Management and Budget ("OMB").
On February 24, the follow-on EO 13777 on Enforcing the Regulatory Reform Agenda created mechanisms and accountability to make sure federal agencies carried out the mandates of EO 13771.8 The new directives required each agency to appoint a Regulatory Reform Officer responsible for implementing EO 13771 within 60 days and establish a Regulatory Reform Task Force charged with identifying regulations that should be repealed, replaced, or modified. The Task Forces were instructed
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to focus on regulations in a number of categories: those that eliminate jobs, are outdated or ineffective, impose costs that exceed benefits, create regulatory inconsistencies or interfere with regulatory reform objectives or policies, rely on data that is not publicly available or reproducible, or derive from EOs or Presidential directives from a previous Administration that have been overridden or modified. Initial Task Force reports were due in 90 days.
To help agencies deal with the new requirements, OMB issued interim guidance on February 2, 2017,9 and a final version on April 5,10 laying out the cost savings calculations and other methodologies to be used in implementing EO 13771. OMB provided additional guidelines on March 6, 2017,11 for agencies to use in stating their regulatory plans in the upcoming - and newly renamed - Unified Agenda of Federal Regulatory and Deregulatory Actions, which formerly covered only new regulation. The new approach required agencies to submit a preliminary estimate of total costs and savings associated with each new rule expected for fiscal year 2018.
In response to the Presidential directives to the Commerce Department and agencies to identify regulations to be modified or eliminated, virtually every federal regulatory authority launched broad requests for comments, resulting in thousands of submissions over the ensuing months. Most agencies declined to publish their assessments of recommended changes, but the Commerce Department issued its required report in October 201712 identifying the top 20 regulatory targets for action, 14 of which - and nine of the top ten - were rules promulgated by the Environmental Protection Agency ("EPA").
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In other actions, the White House took aim at particular programs in the environmental and energy arenas that it condemned as unnecessarily burdensome. EO 13778, on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States Rule,"13 required the EPA Administrator and Secretary of the Army for Civil Works to review and reconsider the 2015 Obama Administration "WOTUS" rule that imposed an expansive interpretation on the scope of federal versus state jurisdiction under the Clean Water Act.14 EO 13783 on Promoting Energy Independence and Economic Growth15 instructed agencies responsible for regulating domestic energy production to submit plans to identify and remove regulatory barriers to U.S. energy independence and increased production. The order also directed revocation of the previous Administration's climate-change focused Clean Power Plan and prohibited use of the "social cost of carbon" to estimate climate-related impacts of federal actions. EO 13795, titled Implementing an America-First Offshore Energy Strategy,16 charged the Secretaries of Interior and Commerce to take steps to encourage offshore energy production, opening up more of the Outer Continental Shelf to energy development and reversing the previous Administration's ban on offshore leasing in the Arctic. Another EO, on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,17 followed on August 15, announcing the Administration's signature "One Federal Decision" policy and goal of completing environmental reviews on infrastructure projects within two years of an initial notice, a further step in...
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