Constraints on Rollbacks

Regulations have some sticking power, even when the White House changes hands.

The Trump Administration’s massive campaign against government regulation was horrifying at the time and depressing in retrospect. Many people have been left with doubts about whether it’s even worthwhile to bother with new regulations, given the risk of a switch in control of the White House. I don’t question Trump’s regulatory carnage. But Obama’s achievements were not entirely canceled, despite Trump’s best efforts.

Indeed, there were some regulations that the Trump Administration didn’t even try to rescind. Here are some key examples:

• Limits on mercury emissions. The Obama EPA issued limits on mercury emissions on power plants. The Supreme Court told EPA to reconsider a key step in the regulatory process. The Trump EPA concluded that this step was invalid but that the mercury limits could still stand anyway. This was a concession to reality: industry had already made the major investments required by the Obama rule and did not want the rule disturbed.
• The endangerment finding. The Trump EPA also left intact the Obama EPA’s finding that greenhouse gases endanger human health and welfare, which is the basis for EPA’s ability to regulate them. Here, the reason was simply that a rollback would never have been upheld in the courts.
• New source permitting. Trump also left undisturbed the mandate that new industrial plants and factories emitting major amounts of other pollutants must use the best available technology to limit greenhouse gas emissions. This rule had already been upheld by the Supreme Court.
• Interstate air pollution. Another Obama rule untouched by Trump limits interstate air pollution by coal and gas-fired power plants. This rule had already been upheld by the Supreme Court. An attempt to repeal it would have had major litigation risks.

These examples highlight two important constraints on rollbacks: the risk of adverse judicial rulings and resistance from industry.  The Trump Administration’s litigation record was at best mixed. As a Bloomberg News article summarized, “What’s clear is that while the Trump administration won some important environmental lawsuits during its single term, it lost a mountain of other critical cases and failed to get most of its top priorities across the legal finish line, leaving them more vulnerable to reversal by President-elect Joe Biden.”

None of this is to deny the damage caused by Trump. Even where rollbacks were ultimately unsuccessfully, they delayed action at a time when action is especially urgent. The Trump rollbacks have also required the Biden Administration to spend precious time and resources on cleaning up the mess. All that being said, we should not let the risk of future rollbacks demoralize us into inaction.

air pollution, Biden Administration, regulatory rollbacks, Trump Administration, water pollution