A closer look at President Trump’s regulation efforts
In what sounded like a major announcement, the Trump administration last week highlighted numbers showing it was making big strides in controlling regulations.
It is true that the pace of rulemaking has slowed dramatically. Thus far, the Office of Information and Regulatory Affairs has approved just 41 regulations, meaning that we might see fewer than 100 in all of 2017. That would be less than onefifth of the average under the most recent Republican president, George W. Bush.
An even bigger deal for the administration was its report that it had withdrawn 469 regulatory actions that had been listed on the Obama administration’s fall 2016 agenda.
The first development is significant—the second, less so. Any administration’s regulatory agenda floats a long list of potential ideas for public consideration; it is understood that a lot of those ideas will never see the light of day.
My guess is that under a Democratic administration, most of those 469 regulations would not have been issued. It’s simple for Trump’s people just to cut them from the agenda, right now. And whatever the White House says, there’s a big difference between eliminating potential ideas for the future and actually removing regulations from the books.
To appreciate the difference, consider another development last week that received hardly any attention. Trump’s Environmental Protection Agency proposed to leave an important Obama administration air pollution regulation untouched.
In 2010, the EPA finalized a rule designed to reduce health risks from nitrogen oxides. Scientific evidence showed that people with asthma, children and older adults face significant risks from exposure to levels of nitrogen oxides that exceeded the 2010 standard. In view of that, and the legal issues that would be triggered by an effort to reverse the Obama-era rule, it was a lot easier for Trump’s EPA to stick with it than to try to loosen it.
There’s a broader lesson here. Whenever agencies want to cut regulations, they have to go through the same time-consuming processes that govern the issuance of regulations in the first place.
Under the Administrative Procedure Act, agencies must begin with a formal proposal to eliminate the rule. The proposal has to offer a new analysis of the law and the evidence. That takes a while to produce—often two months and possibly much longer.
After the proposal comes out, the Administrative Procedure Act requires a period for public comment. Under existing executive orders, that period will usually last for at least two months. If the issues are complicated, the public is going to demand and probably get more time—potentially as much as six months.
After the comments come in, some of the hardest work begins. The agency is legally obliged to give careful consideration to what members of the public say. It has to consider the scientific and economic evidence in a thorough fashion. If it wants to finalize its original proposal, it has to explain why public objections are unconvincing.
It can’t simply announce that President Trump hates regulation, or that the administration has vowed to reduce burdens on business. It has to show why the previous administration was wrong, or why the regulation should be eliminated, even if its predecessor was right.
If the agency gets its act together and moves quickly, the process of finalizing a repeal of a rule is likely to take an additional two months. It can take as much as a year or more. From start to finish, repealing a regulation can occupy the better part of a first presidential term.
And that’s not the end of the matter. The agency’s decision might be challenged in court. If it defies the law or the evidence, it’s going to be struck down.
For the Trump administration, it’s undoubtedly frustrating to discover how hard it is to eliminate regulations. Some rules really are unduly burdensome, outmoded or silly, and it’s right to want to remove them in a hurry.
With creative lawyering, it might be possible for Trump’s people to try to do that—for example, by finding a way to suspend existing rules, or by arguing that because the issues are so clear, there’s no point in a public comment period. Agencies sometimes get away with these maneuvers, but they might well lose in court.
However infuriating and occasionally counterproductive the procedural requirements are, they do have their virtues, for regulation and deregulation alike. They increase the likelihood that the executive branch will pay attention to the evidence. They require agencies to listen to the public. They decrease the risk that interest groups, ideological commitments or political winds will drive policy in one or another direction.
In the coming years, the Trump administration will often find itself stymied in its laudable efforts to remove unjustified regulations from the books. If it wants to make progress, it will have to pick its spots—and push those reforms that would really make a big difference on the ground.