The Burden of Unburdening: Administrative Law of Deregulation

May 16, 2018 12:00 pm — 1:30 pm
Washington, DC (and via webinar)

An ELI Member Seminar

The Trump Administration has promised to roll back a wide array of regulations, including rules that have governed methane emissions, established energy efficiency standards, and defined Waters of the United States. However, rolling back regulations requires much more effort than a mere pen stroke. The U.S. administrative legal framework allows rules to be changed or undone, but governs the way in which these modifications can happen in order to provide regulatory predictability and prevent waste in policymaking. Tension exists between an executive’s discretion to implement regulations, and the authority of his or her predecessor to set meaningful policy.

In most cases, the Administrative Procedure Act (APA) mandates justifications similar to those required for an original rulemaking if a regulation is to be cancelled or rescinded. Furthermore, if an agency seeks to disregard the factual record on which an original rule rests, it must provide a more detailed justification for the change, and satisfy additional requirements. Suspending rules, or delaying their effective date, also places procedural obligations on agencies. For example, a U.S. District Court recently lifted the Bureau of Land Management’s delay in the effective date of a methane waste reduction rule, concluding that the agency had failed to consider the societal costs of staying the rule, rendering it an “arbitrary and capricious” decision and therefore a violation of APA.

ELI and experts discussed obstacles to deregulation, including when, and how, an agency must consider costs and benefits of staying, repealing, and rewriting rules. Speakers discussed the types of rules and guidelines to which these requirements do and do not apply; commented on current challenges to the Trump Administration’s deregulation agenda; and offered insights on the ways that administrative law is developing through interpretation of the APA and other relevant statutes.

Bethany Davis Noll, Litigation Director, Institute for Policy Integrity, New York University School of Law, Moderator
Kathryn Kovacs, Professor of Law, Rutgers Law School
Fred R. Wagner, Partner, Venable LLP
Susannah Landes Weaver, Partner, Donahue, Goldberg & Weaver, LLP

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