The Burden of Unburdening: Administrative Law of Deregulation

Date01 September 2018
9-2018 NEWS & ANALYSIS 48 ELR 10767
The Burden of Unburdening:
Administrative Law of Deregulation
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celled or rescinded.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
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®,, 1-800-433-5120.

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