Forgot password?
Sign up today and your first download is free.

The Insider

EPA Faces Tough Path To Fulfill Aggressive Deregulatory Goals In 2019

The ongoing shutdown at EPA and other agencies underscores the challenge the Trump administration faces in completing a packed dregulatory agenda for 2019, including proposing or finalizing a host of complicated, high-profile rulemakings in time to also complete litigation before the end of President Donald Trump's current term.

Newly empowered House Democrats, meanwhile, hope to move quickly on a new climate agenda while also conducting aggressive oversight of the Trump EPA's actions.

Inside EPA has a full review of the environmental policy developments on the horizon in our Outlook 2019 special report, with in-depth coverage of the Trump administration's plans for the year, state-level policies, and efforts by Trump foes such as Democrats and environmental groups to stymie those plans and preserve or strengthen Obama-era rules.

EPA itself is under pressure to move quickly to repeal or weaken the prior administration's policies while also enacting affirmative new rules, as top officials are looking to have their high-priority agenda items finished before the end of the calendar year as a safeguard against a potential Democratic victory in the 2020 elections:

EPA Scrambles To Complete Rollbacks, Suits Before End Of Trump's Term
The Trump EPA's deregulatory agenda faces a crucial test in 2019 as officials scramble to complete a slate of high-profile measures, including a suite of climate rollbacks and a rule narrowing the reach of the Clean Water Act (CWA), in enough time that officials can also shepherd certain litigation through the courts before the end of 2020 when President Trump's first term ends.

Finishing major rules by the end of 2019 would allow time for court challenges to advance before the end of President Donald Trump's current term, which is a priority for the administration's current officials who have been working to reverse past policies after the Obama EPA was unable to complete its court defenses of high-profile measures before the president's second term expired.

Industry sources say that if EPA sticks to its schedule, it should be able to shepherd most of of its priority rules through litigation, at least in the U.S. Court of Appeals for the District of Columbia Circuit, based on how long such cases generally take. However, the current shutdown could be a wild card that upends the schedule.

And the courts themselves could throw another wrench into EPA's plans; along with a slate of pending cases by Democratic states and environmentalists who hope to revive stayed Obama-era rules, the Supreme Court is preparing for a case that could drastically limit the deference that regulators receive to craft and enforce rules:

Justices Take Aim At ‘Deference,’ Signaling New Limits On EPA Discretion
The Supreme Court could issue a ruling as soon as this summer overturning a 21-year-old doctrine under which judges have given extensive deference to EPA and other agencies' interpretations of their rules, teeing up what court watchers say would be a major win for conservatives who have long sought to limit judicial deference to regulators.

Republicans have long sought to cut back or eliminate judicial deference to agencies, but rewriting that standard in the middle of the Trump administration's policy work could make it more difficult for EPA to craft rulemakings that will survive court challenges.

Policies EPA is eyeing for release in 2019, either as proposed rules or in final form, include a rewrite of the CWA jurisdiction standard, a suite of rollbacks targeting Obama-era climate rules, and chemical review actions required by the many statutory deadlines approaching under the reformed Toxic Substances Control Act.

All of those agency actions, and more, are guaranteed to draw court challenges from the Trump administration's critics, setting up heavy pressure on EPA to ensure that they will hold up under judicial scrutiny while also releasing the final rules in time for that process to run to completion before 20201.

Meanwhile in Congress, House Democrats are juggling their nascent oversight work with an affirmative environmental agenda focused on climate change, including the creation of a new select committee on the subject:

Democrats Have New Chance To Craft Climate Plan But Face Balancing Act
Democrats' renewed control of the House will give them the first opportunity in almost a decade to craft an affirmative climate change agenda, though continued GOP control of the Senate and White House makes enactment of major legislation less likely than development of a political platform for action sometime after 2020.

While Democratic supporters are calling for action on the issue, lawmakers will have to juggle those demands with the need to avoid a potential backlash from voters against any plans that could be perceived as over-reach. That has led many experts to suggest that the most Democrats likely can accomplish in the short term are various smaller-scale policies with explicit or implicit link to greenhouse gases.

Finally, states are advancing their own agendas and expanding their environmental work in order to maintain the Trump EPA's policy of loose oversight compared with its predecessors, under the umbrella of a more robust “cooperative federalism” approach:

To Preserve Autonomy, States Seek To Demonstrate Environmental Gains
States are seeking to preserve the increased autonomy the Trump EPA has begun to grant them in its first two years but are facing a crucial test in 2019 as they seek to show that the administration's cooperative federalism approach has improved the environment.

Check out Outlook 2019 for full coverage of those topics and more, and keep reading Inside EPA for ongoing reporting into EPA's crucial upcoming year.