• Mark Ryan

Will New White House E.O. Result in More Rollbacks?

President Trump signed an Executive Order yesterday entitled, "Executive Order on Regulatory Relief to Support Economic Recovery." Here's a link to the E.O.

Look at sections 4 and 7, which I have pasted below with highlights in bold. This order sweepingly invites the agencies, including EPA and the Corps to consider all possible regulatory relief to get the economy going again, and to consider making those rollbacks permanent. Most environmental laws could be argued to "inhibit economic recovery." Compliance with environmental laws is expensive. It's the price we pay to internalize the costs to society of pollution. Given the EPA's penchant for rollbacks so far, it will be interesting to see what Administrator Wheeler does with this new power. I assume EPA will still be required to comply with the APA. Can an E.O. circumvent the public notice and comment requirements of the APA? Is EPA relieved of the arbitrary and capricious standard in times of national emergency? Can EPA now ignore congressional mandates in the CWA? These are uncharted waters. Expect lots of litigation.

Sec.4.  Rescission and waiver of regulatory standards.  The heads of all agencies shall identify regulatory standards that may inhibit economic recovery and shall consider taking appropriate action, consistent with applicable law, including by issuing proposed rules as necessary, to temporarily or permanently rescind, modify, waive, or exempt persons or entities from those requirements, and to consider exercising appropriate temporary enforcement discretion or appropriate temporary extensions of time as provided for in enforceable agreements with respect to those requirements, for the purpose of promoting job creation and economic growth, insofar as doing so is consistent with the law and with the policy considerations identified in section 1 of this order.

Sec.7Review of Regulatory Response.  The heads of all agencies shall review any regulatory standards they have temporarily rescinded, suspended, modified, or waived during the public health emergency, any such actions they take pursuant to section 4 of this order, and other regulatory flexibilities they have implemented in response to COVID-19, whether before or after issuance of this order, and determine which, if any, would promote economic recovery if made permanent, insofar as doing so is consistent with the policy considerations identified in section 1 of this order, and report the results of such review to the Director of the Office of Management and Budget, the Assistant to the President for Domestic Policy, and the Assistant to the President for Economic Policy.

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