The Environmental Protection Agency in the Early Trump Administration: Prelude to Regulatory Capture (original) (raw)
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Journal of Land Use and Environmental Law, 2019
While Scott Pruitt’s aggressive deregulatory agenda while he served as Administrator of the Environmental Protection Agency got significant attention, many of his actions have been successfully challenged in the courts. This Article argues that these deregulatory efforts have been plagued by five pathologies that contributed to their legal vulnerability. First, Pruitt’s EPA was driven by political ideology and extremism. Second, he isolated himself from career staff at the EPA. Third, trade associations, which have exerted significant influence, were often dominated by extreme views within the group. Fourth, industry has been slow to adapt to how the Trump Administration has operated. And fifth, short-term political thinking has shifted focus away from long-term policy success. These pathologies were not limited to Pruitt’s hapless tenure. They continue to hobble the work of the EPA and of other agencies in the Trump Administration and could stand in the way of the accomplishments of future administrations—both Republican and Democratic.
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This Article, written as part of a conference honoring Professor Richard Stewart on his 50 years as a legal academic, focuses on the inconsistent manner in which the Trump Administration has dealt with three of the most important conceptual issues that are central to the design of environmental policy: cost-benefit analysis, federalism, and the treatment of dirty, old sources of pollution. It has acted in a patently inconsistent way in different proceedings, embracing co-benefits in some cases and decrying their use in others; extolling the virtues of state decisionmaking in some cases and running roughshod over such decisionmaking in others; taking extreme actions to protect existing, dirty sources in some cases, and celebrating their replacement in others. The Trump Administration has simply taken whichever side of each of these arguments would advance its deregulatory policies. Though inconsistencies across different regulations-as opposed to inconsistencies within a single regulation-have not been a core concern of the Administrative Procedure Act, its prohibition on "arbitrary and capricious" agency action is sufficiently capacious to embrace egregious actions of this type.
Checks without Balance: Executive Office Oversight of the Environmental Protection Agency
Law and Contemporary Problems, 1991
The rise of the modern administrative state has been fueled by the explosive growth of federal regulatory legislation. By shifting policymaking authority from Congress to administrative agencies, regulatory legislation has helped to transform "the system of shared powers created by the Constitution" into "a system of shared influence over bureaucratic decisionmaking."t Nowhere is this transformation more apparent than in the competition between Congress and the president for control of federal environmental policy. This competition has stimulated the development of a new tool for executive influence on regulatory decisions: review of agency action by the Executive Office of the President. 2 Presidential use of regulatory review and the congressional responses it has provoked pose new challenges to theories of the impact of separation of powers on federal policymaking. This article explores the tension between the rule of law and the politics of regulation reflected in Executive Office oversight of the Environmental Protection Agency ("EPA"). Part II describes the history of the White House review programs, which were established out of concern over the impact of environmental regulation. Part III explores the broad impact of Executive Office oversight on EPA's rulemaking and decisionmaking processes. Part IV considers how Congress has responded to regulatory review by intensifying its own oversight activities and adopting increasingly prescriptive
Standard" and "Alternative" Environmental Protection: The Changing Role of Environmental Agencies
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reflects the views of the author alone and does not represent the position of the U.S. EPA. 1 At the federal level, these efforts first became visible as part of the Clinton-era "reinvention" efforts. See David W. Case, The EPA's Environmental Stewardship Initiative: Attempting to Revitalize a Floundering Regulatory Reform Agenda, 50 EMORY L. J. 1 (2001) (giving an overview of developments in the Clinton era) [hereinafter Case, The EPA's Environmental Stewardship Initiative]. The subsequent Bush Administration continued to endorse a search for innovative strategies. In 2002, under Administrator Christine Todd Whitman, the EPA issued a report entitled "Innovating for Better Results: A Strategy to Guide the Next Generation of Innovation at EPA." See U.S. ENVTL. PROT. AGENCY, DOC. No. 100-R-02-002, INNOVATING FOR BETTER ENVIRONMENTAL RESULTS (2002) [hereinafter INNOVATING FOR BETTER ENVIRONMENTAL RESULTS], available at httpj/www .epa.gov/innovation/pdf/strategy.pdf. Michael Leavitt, the second EPA Administrator in the Bush Administration, used the term "better way" to describe his goal of achieving environmental objectives in a more collaborative, less costly and more locally tailored fashion.