The unregulating of America
The good news, we guess, is that President Trump has so far proved to be a rather ineffectual chief executive. He’s signed 40 pieces of legislation, but none represented major new initiatives. Even his one clear victory, Senate confirmation of Neil Gorsuch to the Supreme Court, came about only after Senate Majority Leader Mitch McConnell blew up tradition and killed the filibuster on Supreme Court nominees.
Beyond that, the White House has offered no significant legislation of its own. The president has been content to let Congress drive the repeal-replace Obamacare car, though he has by fiat undermined the landmark healthcare law by refusing to enforce sections of it. The president also has failed to offer nominees for more than 400 of 558 key administrative positions requiring Senate approval, according to a daily tracker maintained by the Washington Post. So apparently he’s been quite busy not doing much of consequence, which is probably in the nation’s best interests, given how wrong-headed many of his political beliefs are.
One place where Trump has made some strides, though, is in attacking regulations. Granted, Congress has done much of the heavy lifting, rescinding 15 Obama administration regulations under the Congressional Review Act. But Trump is only just getting started on his anti-regulatory agenda, which has no coherent vision beyond “less is more.” The administration already has begun quitting legal fights in which the Obama administration had been engaged — the Environmental Protection Agency recently settled a lawsuit with a company the Obama administration had been fighting over a proposed an open-pit gold mine in the headwaters of Alaska’s Bristol Bay, one of the world’s premier sockeye salmon fisheries.
There is a philosophical argument to be made that excessive regulation can stifle growth and development. But it falls to government to ensure that industries, in their pursuit of profits, don’t cause serious or irreparable harm by poisoning the air and water, or cheating investors, or marketing drugs that hurt more than they heal, or any of the other oversteps that even the bestmeaning corporations can occasionally make.
There undoubtedly are many regulations that have outlived their purpose, or that have proved to be less useful than anticipated. And there is a mechanism for undoing or revising them. But Trump isn’t approaching the issue in so rational a way; instead, he has framed his mission in bizarre and unsupportable terms. His “two for one” order, in which every new proposed regulation must be accompanied by two regulations that are to be rescinded, is the polar opposite of good governance. Regulations should stand or fall on their own merits and the public good, not because the president has given his bureaucrats a roll-back quota.
The administration seems to have made a priority of undermining environmental regulations, particularly those dealing with climate change. In keeping with Trump’s illconsidered decision to withdraw from the 2015 Paris climate agreement, the administration has decided to roll back the Clean Power Plan, which was supposed to reduce carbon emissions from electric plants, and to put a hold on rules requiring drillers to capture methane emissions from wells. Fortunately, scrapping regulations isn’t that easy, and environmental groups already are lining up their legal challenges, arguing that the government lacked the authority to simply stall an approved rule.
The courts could well be the savior for the environment, and any other regulated arena. To adopt a regulation, federal law requires the government to provide evidence that the proposed rule is necessary, make the details public, and then collect, analyze and respond to public comments. A similar process is required to rescind a rule. So in the case of the methane capture rule, for instance, the Trump administration must demonstrate that either circumstances have changed or the previous justification for the rule was wrong. And it will likely have to defend the argument later in court. No easy task, that.
To be sure, Trump and his minions, who rode into power on a rocket of disruption, pose a serious threat to the nation’s well-being, from their willful ignorance of climate science to their draconian views on criminal justice, and from their attacks on the healthcare system to their efforts to weaken fundamental institutions of government. The election might be behind us, but battles remain ahead.