Our System of Government Resists Rapid Change

After a little more than a year in office, the Trump administration is learning how challenging it is to make regulatory changes.  Despite the efforts of EPA Administrator Pruitt, which President Trump has consistently applauded, court challenges and administrative requirements have impeded some of these efforts.

Court Challenges Are a Fact of Life for EPA
A recent New York Times article summarized the ongoing challenges that EPA is facing. It identified several cases where EPA policies were impeded by court rulings.  Some of those rulings were: the D.C. Circuit Court of Appeals decision that precluded EPA from suspending rules related to methane emissions from oil and gas development; the California district court ruling that EPA must designate areas that do not meet the 2015 ozone standard; the Connecticut district court ruling that EPA must act on Connecticut’s petition for stricter limits on emissions from a Pennsylvania power plant; and the Ninth Circuit Court of Appeals directive that EPA revise its lead paint standards.

Regulations Cannot Change Simply Because of a New President
In our system, regulations cannot be changed simply because a new administration has a different approach. The U.S. Supreme Court has said that when an agency changes position, the administrative record must demonstrate awareness that the agency is changing position and show that there are good reasons for the new policy.  Courts generally insist on a significant administrative record to support removal of or substantive changes to regulations, especially where an extensive administrative record already exists to support the current regulations.

EPA’s Efforts to Rollback a Key Greenhouse Gas Rule
The Times specifically discussed the challenge that EPA faces in rolling back the current rule regulating greenhouse gas emissions from vehicle tailpipes.  EPA prepared a 38-page document to support the rollback, but a document in excess of 1,200 pages supports the current Obama-era regulation.  While the number of pages does not determine the adequacy of the administrative record, several commenters have indicated that the difference in the administrative record could make it difficult for EPA to prevail in the court challenge that will certainly follow the promulgation of any final rule.

Our Constitution, laws and courts make rapid change difficult, and when the party of the executive branch changes, this concept often becomes particularly apparent.

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