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To survive such court challenges, agencies must present a robust record that justifies any changes to previous regulations. Opponents to a regulatory change can challenge it in court, as six Northeastern states and New York City have recently done regarding EPA’s “good neighbor” determination pursuant to Clean Air Act requirements regarding cross-state air quality. Of course, publishing a final regulation in time to avoid getting caught in the CRA window still doesn’t guarantee it will survive. While a Democratic congress and Democratic president may be reluctant to disapprove of regulations if the consequence is no regulation at all, they will likely be very eager to apply it to modifications or rescissions if their disapproval would leave previous regulations in place. Depending on the outcome of the 2020 elections, Democrats may well take advantage of the CRA to reverse Trump actions. Congressional Republicans used the CRA to their advantage in 2017, overturning 14 regulations issued during the last few months of the Obama administration. Perhaps more important, the threat of the Congressional Review Act (CRA) means the deadline for completing regulations is the summer of 2020, rather than January 2021. Progress going forward may be hindered by increased congressional oversight, especially from the House, and by the 2020 presidential race that has already begun. Will Congress and the Courts Hinder Trump’s Deregulatory Agenda?
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Since this can take two years or longer, agencies should have at least issued proposals by now for rules they would like to wrap up before the end of Trump’s four-year term.
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For significant regulations, agencies must develop a legal and factual record to support the action, engage in interagency review led by OMB, seek public comment on the revisions, and justify the final action with information in the record. The procedures for rescinding or modifying an existing regulation are the same as those for issuing a regulation in the first place. While the ratio of deregulatory to regulatory actions is consistent with the president’s rhetoric, 19 major deregulatory initiatives hardly begin to chip away the stock of accumulated regulations that may be outdated, unnecessary or inefficient. These statistics don’t include actions of independent regulatory agencies, such as the Federal Communications Commission’s Restoring Internet Freedom rule that overturned the utility-style regulation issued by the previous commission. Of the 57 major regulations executive agencies issued during the first two years of the administration, they classified 19 as deregulatory, 11 as regulatory, and the other 27 as exempt or “other.” Many of the deregulatory actions are not expected to yield significant cost savings, but on net, OMB estimates annual savings of $1.6 billion in fiscal year 2018. According to the report, as of October 2018, agencies had taken 243 deregulatory actions (67 in fiscal year 2017 and another 176 in fiscal year 2018) and issued only 17 new regulations. OMB claimed in a report last fall that they are succeeding. To that end, his Executive Order 13771 requires agencies to remove two regulations for every new one they issue and to offset the costs of new regulations by modifying or rescinding existing rules. The president has promised not only to slow the pace of new rulemaking, but to cut into the stock of existing regulations. Trump’s executive agencies issued 57 major regulations, compared to 127 and 71 during the first two years of the Obama and Bush administrations. Office of Management and Budget (OMB) data show that executive branch agencies, over whom the president arguably has more control, have issued less than half as many major regulations as they had at this point in the Obama administration.