The Big Question
As I have written several times in the last few weeks, within only eight days left in the Trump administration, it continues to rush rules, permits and policies out the door at a feverish pace. The public comment period on the proposed new mens rea rule, for example, (see my Dec. 11 blogpost) ends on January 13, giving the administration exactly three business days to write response to comments and to finalize the rule. Someone's working over the weekend.
So the big question is, what will happen to all of these new administrative actions? The short answer is if they aren't final by noon on the 20th, they'll likely be stopped and reconsidered by the new administration. Hence the big rush. If they're finalized before the 20th, then the Agencies will have to wait for the inevitable lawsuit challenging the new rulemaking, then take a voluntary remand. Or they can go through public notice and comment rulemaking to withdraw the rule. That's a heavy and time-consuming lift if done right. The final possibility now that the Dems have the Senate, is the invocation of the Congressional Review Act. I expect we'll see all of these in the next few months.
And there's a lot to look at, not just in the CWA. The Trump administration was prolific in its deregulatory effort. Ultimately, I think, the administration will not be viewed as that successful given the large number of court challenged they've already lost (see my July 30 blogpost) and the number of these late-term rule makings that will get clawed back. The will be a lot to keep track of over the next year as the pendulum swings back toward the left. And, as always, watch for lots of litigation.
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