Environment, Energy Rules’ Delay Raises Concerns: Legal Experts

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By Rachel Leven and Rebecca Kern

House Democrats are accusing the Trump administration of pushing the limits of the Administrative Procedure Act, and some legal experts appear to agree.

Specifically, the congressmen allege that the Environmental Protection Agency and the Energy Department’s delay of nearly a dozen rules without requesting public comment for the second time since President Donald Trump (R) took office means those agencies “consistently ignored and flouted” the law that governs how agencies propose and establish regulations. Several legal experts told Bloomberg BNA a case could be made against the agencies.

“I think both EPA and DOE are on extremely shaky ground here and I would think that if this were challenged in court, the courts would require the agencies to allow notice and comment on these proposed extensions,” Jeffrey Lubbers, professor of practice in administrative law at American University’s Washington College of Law, told Bloomberg BNA in an email.

The lawmakers’ concerns, relayed in a March 20 letter to the White House, raises the question of how long of a review of the former administration’s “midnight rules,” rules finalized during the waning days of a presidency, is allowed under the administrative act when a new president takes office. The issue spans both sides of the aisle.

Regulations Cover Variety of Issues

The EPA delayed several rules Jan. 20 through March 21 to give new agency leadership time to review them. The regulations cover issues on air to pesticides. But in two separate final March rules, the EPA further delayed six rules for another 60 or 90 days, including the agency’s chemical plant safety rule.

The Energy Department had a similar initial review period through March 21. This month, it further delayed effective dates for two energy-efficiency standards for ceiling fans and low-rise residential buildings by six months and for three test procedures covering walk-in coolers, central air conditioners and air compressors by about three months.

The Democrats’ letter, signed by House Energy and Commerce Committee ranking member Frank Pallone (D-N.J.) and its subcommittees’ ranking members Bobby Rush (D-Ill.), Doris Matsui (D-Calif.) and Paul Tonko (D-N.Y.) to White House Office of Management and Budget Director Mick Mulvaney, asserted the administration’s decisions to delay the President Barack Obama-era rules should have undergone public comment.

The congressmen asked Mulvaney to rescind the final rules that further delayed the EPA rules and provide additional information. But Coalter Baker, an OMB spokesman, told Bloomberg BNA in an email the director doesn’t have the authority “to unilaterally withdraw rules issued by other agency heads.”

The EPA and the Energy Department didn’t respond to Bloomberg BNA’s requests for comment.

Is There a Case?

Most attorneys agreed with Democrats that the second extensions of the rules’ effective dates could leave the agencies vulnerable if challenged in court. That means agencies would need to take public comments on the rules that further delay the EPA and energy rules’ effective dates.

Lubbers and James Goodwin, a senior policy analyst with the liberal Center for Progressive Reform, said the Trump administration’s reasoning for further delaying the rules did not fall within the “good cause” exception of the administrative act. The agencies said this exception allowed them to delay the rules.

The good cause exception states that “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”

“The plausible explanation they have for delaying these rules is, ‘We didn’t write them,’” Goodwin told Bloomberg BNA. “You look at the Department of Energy’s statutory authority and you look at the EPA’s statutory authority, there is no Trump exception clause in any of those statutes.”

Skepticism and Politics

Jonathan Adler, director of the Case Western Reserve University School of Law’s Center for Business Law & Regulation, appeared more skeptical that a court would step in on the matter.

“Unless the delay is for an extended period of time, I’m not sure courts would be in a position to do much about it,” he said in an email.

But Will Yeatman, senior fellow at the free-market Competitive Enterprise Institute, told Bloomberg BNA regardless of whether the court ruled against the agency in this area, past administrations on both sides of the aisle have found ways to avoid enforcing parts of the law they don’t like.

“I agree with the congressmen that it stinks, but the fact is that it’s par for the course,” Yeatman said. “There are a million ways to go about not doing things you don’t want to do when you have the keys to power.”

To contact the reporters on this story: Rachel Leven in Washington at rleven@bna.com; Rebecca Kern in Washington at rKern@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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