The Trump environmental transition

After a pleasant interlude in medieval English forests, we return to recent history with a recent post by Craig Oren on RegBlog. After laying out some of the possible deregulatory moves we will see from the Trump administration, Oren takes us back in time:

We must remember 1981, when the Reagan Administration came into power. Its choice for EPA administrator was Anne Gorsuch [Neil Gorsuch's mother-DS], who had little experience in environmental matters. Lobbyists seeking deregulation initially had much influence on the agency. During her short-lived tenure, a draft emerged of proposed amendments that would have eviscerated the Clean Air Act, much to the horror of environmental groups. Gorsuch also repeatedly weakened EPA’s enforcement office. Gorsuch warred with the agency’s career staff: a number of high-level executives were transferred—and some lost their jobs altogether—as punishment for not being sufficiently compliant with the Administration’s priorities.

Gorsuch at her farewell news conference

Capitol Hill looked unpromising, too, during the Reagan years. Then-Representative John Dingell (D-Mich.)—a firm environmentalist, but also someone who was concerned with the interests of auto companies, which employed many of the constituents in his Detroit congressional district—joined with industry and Republicans to put together a package of weakening amendments to the Clean Air Act, including a rollback of auto-emission standards l. And a so-called regulatory reform bill, designed to hamstring agencies from protecting public health and the environment, seemed in 1982 to have a considerable chance for some time of being enacted.

What was the outcome of these deregulatory efforts? For one, Gorsuch’s attempt to reduce the agency’s regulation of lead, a neurotoxin, ultimately led to a considerable tightening of the rules. Gorsuch herself was forced to resign in early 1983 because of a scandal concerning the agency’s Superfund program. In order to restore agency morale and credibility, the Reagan Administration felt obliged to name as the agency’s administrator the moderate William Ruckelshaus, who, years earlier under the Nixon Administration, had served as EPA’s first-ever administrator. The Clean Air Act amendments desired by Representative Dingell and his Republican allies never got out of committee; instead, they were defeated by grassroots lobbying and through aggressive opposition by such legislators as then-Representative Henry Waxman (D-Calif.). And the deregulatory legislation collapsed in the Senate.

Notably, however, by the end of the Reagan Administration, some pieces of environmental legislation had been strengthened. For instance, President Reagan signed the Hazardous and Solid Waste Amendments of 1984, which considerably escalated the controls on the disposal of hazardous wastes. In 1986, the President also signed the Superfund Amendments and Reauthorization Act, which put more teeth into the Superfund program.

This is not to say, of course, that all was ideal for environmental protection during the Reagan Administration. The Administration, for example, fought against proposed regulation of acid rain almost to the end. Still, the results of the Reagan Administration’s efforts turned out to be much less antiregulatory than anyone could have predicted when President Reagan took the oath of office.

There were several constraints on the Reagan Administration, many of which still exist. One limiting factor was the grassroots activity of environmental groups, as with the groups’ successful defeat of efforts to alter the Clean Air Act. Such activity is on full display today: the advent of the Trump Administration has brought about a remarkable growth in fundraising by environmental groups, just as was true in the Reagan years.

Another constraint was litigation brought by these groups. The courts did at times defer to the Reagan EPA’s deregulatory actions (the decision in the famous Chevron case being a prime example). But in the 1970s, the courts had made it clear that agency actions would be carefully examined to determine if they were the product of reasoned decision-making , and the courts established procedural requirements (such as disclosing relevant data and responding to material comments) to help judges make that examination. The Supreme Court made it clear in the State Farm case early in the Reagan Administration that these requirements apply to deregulation as well as regulation. These judicial mandates still exist today; if anything, they may become more limiting now that Chevron deference is being challenged by conservative judges. Thus the courts will remain an obstacle to deregulation.

Congress can be another bulwark. True, unlike in the Reagan Administration, the party that currently controls the White House also controls both houses of Congress. Thus there is no immediate chance that there will be the kind of aggressive congressional oversight of EPA that marked the Reagan years....

For more on Reagan the environmentalist see here. More on the Trump transition soon.