President-elect Trump’s campaign has promised to roll back federal regulations so it is unclear whether recently completed rules will remain in force after January 20. Once he takes office, Mr. Trump will have several mechanisms at his disposal to do away with Obama-era regulations, but each has important limitations that make wholesale regulatory repeal unlikely. Faced with competing interests, the Trump administration is expected to prioritize and focus its efforts on overturning a handful of regulations, such as the EPA’s and Army Corps’ Waters of the US rule, EPA’s rule on methane emissions from new and modified oil and gas facilities, or BLM’s venting and flaring rule.
- Regulation Repeals. President-elect Trump could issue executive orders directing agencies to repeal or revise previously promulgated rules but this would require formal notice and comment for each rule, and the final decision would have to withstand judicial scrutiny in near-certain litigation. For complex regulatory issues, such as the regulation of greenhouse gas emissions, the repeal process could take several years.
- DOJ Position in Pending Litigations. A Trump-led Department of Justice may be directed not to defend the numerous pending lawsuits against the most controversial Obama-era regulations, such as the Clean Power Plan, the BLM’s and EPA’s methane rules, and the Army Corps’ Waters of the US rule. Even without an active DOJ defense, however, third-party intervenors will almost certainly step in to continue defending such rules.
- Congressional Overhaul. A third option applies to rules finalized within the last 60 session days before Congress adjourns, which has been estimated to fall at the end of May. For any rule finalized after this date, the Congressional Review Act (CRA) allows Congress to pass, and the President to sign into law, a joint resolution disapproving the rules.
Congressional Republicans, including Paul Ryan, have repeatedly attempted to use the CRA to overturn some of the Obama administration’s rules, but these attempts were largely symbolic because they either failed to generate the necessary two-thirds majority in both houses or were vetoed by President Obama.
But now, with two Republican-controlled houses and a Republican president intent on stripping away burdensome regulations, the CRA is a viable—though by no means automatic—path to overturning regulations without the typical procedural requirements. The CRA does not permit filibusters in the Senate, but House Democrats will be able to filibuster each measure—and while the CRA places limitations on the debate time on the House floor, repealing each target rule through a separate joint resolution is likely to be very time consuming.
In part to address this issue, both the Senate and the House have introduced bills, S.3483 and H.R. 5982, respectively that would allow Congress to bundle “midnight regulations” and overturn them as part of a single joint resolution. These bills are unlikely to overcome significant Democratic opposition in the current Congress, and President Obama has indicated he would veto them if passed, but they stand a better chance in next year’s Republican-controlled legislature.
Significantly, these administrative hurdles apply only to formal rulemakings. President-elect Trump can abolish executive orders, interpretive rules, policy statements and guidance documents, such as the Council on Environmental Quality’s guidance for evaluating greenhouse gas emissions as part of NEPA review.