The Burden of Unburdening: Administrative Law of Deregulation

• Date: 01 September 2018

9-2018 NEWS & ANALYSIS 48 ELR 10767

DIALOGUE

The Burden of Unburdening:

Administrative Law of Deregulation

Summary

e Donald Trump Administration has been attempt-

ing to roll back a wide array of regulations, includ-

ing rules that have governed methane emissions,

established energy-eciency standards, and dened

“waters of the United States.” e U.S. administrative

law framework allows rules to be changed or undone,

but governs how these modications can happen. In

most cases, the Administrative Procedure Act (APA)

mandates justications similar to those required for

an original rulemaking if a regulation is to be can-

celled or rescinded. If an agency seeks to disregard the

factual record on which an original rule rests, it must

provide a more detailed justication for the change,

and satisfy additional requirements. Suspending rules

or delaying their eective date also places procedural

obligations on agencies.

On May 16, 2018, ELI convened experts to discuss

obstacles to deregulation, including when and how an

agency must consider costs and benets of staying,

repealing, and rewriting rules. Spea kers commented

on current challenges to the Trump Administration’s

deregulation agenda, and oered insights on the ways

administrative law is developing through interpreta-

tion of the APA and other relevant statutes. Below, we

present a transcript of the discussion, which has been

edited for style, clarity, and space considerations.

Caitlin McCarthy is Director of the Associates Program

at the Environmental Law Institute.

Bethany Davis Noll (moderator) is Litigation Director

at the Institute for Policy Integrity, New York University

School of Law.

Susanna h Landes Weaver is a Partner at Donahue,

Goldberg & Weaver, LLP.

Kathr yn Kovacs is a Professor of Law at Rutgers L aw

School.

Fre d Wagner is a Par tner at Venable, LLP.

Caitlin McCarthy: I would like to introduce the mod-

erator of our panel. Bethany Davis Noll is the litigation

director at the Institute for Policy Integrity at New York

University School of Law. Previously, she worked as assis-

tant solicitor general in the New York Attorney General’s

Oce, Appeals and Opinions Division, where she led

briefs on behalf of a coalition of states in support of the

U.S. Environmental Protection Agency’s (EPA’s) Clean

Power Plan. Prior to working at the Attorney General’s

Oce, Bethany was a l itigation associate in private prac-

tice, where she led a team in a pro bono Clean Water Act

enforcement suit.

Bethany Davis Noll: ank you. I’m going to introduce

the rest of the panel and provide a road map for our discus-

sion. With me on the panel are Susannah Weaver, Prof.

Kati Kovacs, and Fred Wagner.

Susannah is a pa rtner at Donahue, Goldberg & Weaver,

which specializes in cutting-edge environmental issues

and appeals. Susannah previously worked at Orrick, Her-

rington, and clerked for three judges—Justice Stephen

Breyer, Circuit Judge Bob Katzmann on the U.S. Court

of Appeals for the Second Circuit, and District Judge

Henry Kennedy Jr. on the District Court for the District

of Columbia. In law school, notably, she helped draft t he

cert petition and the merits briefs in Massachusetts v. Envi-

ronmental Protection Agency,1 a hugely important environ-

mental case where the Court found that t he Clean Air Act

(CA A)2 covers greenhouse gases.

Professor Kovacs teaches administrative law, envi-

ronmental and natural resource s law, and property law

at Rutgers Law School. Before that, she was at the U.S.

Department of Justice (DOJ) for 12 years, where she

worked in the Environment and Natural Resources Divi-

sion and did appellate work. She was appointed as senior

adviser to the director of the Bureau of Land Manage-

ment (BLM ).

Editor’s Note: Bethany Davis Noll led amicus briefs in several

of the cases discussed here, including California v. U.S. Bureau

of Land Management, 277 F. Supp. 3d 1106 (N.D. Cal. 2017);

Natural Resources Defense Council v. National Highway Trac

Safety Administration, 894 F.3d 95, 115 (2d Cir. 2018); and

Natural Resources Defense Council Inc. v. EPA, No. 18-1048

(S.D.N.Y. Feb. 6, 2018). She did not represent any of the parties.

1. 549 U.S. 497, 37 ELR 20075 (2007).

2. 42 U.S.C. §§7401-7671q; ELR S. CAA §§101-618.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.