WASHINGTON, Sept. 30, 2015 - Jeb Bush’s plan to undo President Obama’s regulatory agenda has created some buzz, but it won’t be easy to carry out -- and it could take years to replace some of the rules, experts say. But they say there are some shortcuts that could help a GOP president, especially if he or she has a cooperative Congress.
Rules that aren’t final can easily be sidetracked indefinitely. But the administration is ensuring that the most far-reaching ones will be finalized before the next president takes office. The rule re-defining the “waters of the United States” (WOTUS) that fall under the regulation of the Clean Water Act took effect in August. Another rule the administration is moving to finalize involves expanded requirements for nutrition labels on food packaging.
On Thursday, the EPA faces a court-ordered deadline to announce whether it will lower the limit on ground-level ozone, a move that could affect agriculture as well as rural areas more broadly. The current limit is 75 parts per billion. EPA has proposed lowering it to 65 to 70 parts per billion. Industry has argued that lowering the limit is premature and unjustified.
Republicans in Congress hope to use a fiscal 2016 omnibus spending bill to block the administration from enforcing some of these new rules, but that’s only a temporary fix. Permanent changes would have to come from the courts, or from Congress, or from the next president, or some combination of the three.
The simplest way to kill the rules is for a Congress to do it in 2017 with the cooperation of a new president who wouldn’t veto such legislation. Bush’s plan makes clear he would sign the bills. But even if Republicans control both houses of Congress, there’s no guarantee they would have enough Democratic support to overcome a filibuster in the Senate.
If Congress can’t act, the burden would fall on the new president and the agencies that wrote the rules. The path to repealing and replacing them is anything but quick and dirty, due to the requirements of the Administrative Procedures Act, which lays out a multi-step process for changing federal regulations. Those steps include developing a legal, and possibly scientific, justification for writing a new rule, and then providing a notice and public comment period.
Supreme Court rulings “require an agency repealing a regulation to go through the full notice and comment process to rescind it, and provide a reasoned explanation to justify the reversal in policy,” said Bruce Silverglade, a specialist in food regulation with the Olsson Frank Weeda Terman Matz law firm.
There are a couple of options to make quicker fixes, but both could face legal challenges:
-Issue an interim final rule, which takes effect while the notice and comments and other requirements are carried out. Environmentalists would almost certainly file suit over the interim rule on the basis that the WOTUS rule was developed on the basis of extensive scientific and agency analysis, said Lowell Rothschild, an environmental law specialist with Bracewell and Guiliani.
-Don’t enforce parts of WOTUS and other Obama administration rules. The problem with that approach, especially in the case of WOTUS, is that environmental groups could file “citizen lawsuits” challenging individual permits on the basis that the regulations were improperly enforced, said Rothschild. Because the statute of limitations is six years, a permit holder would face “a fair amount of uncertainty for an extended period of time,” he said.
One more option: Agencies could extend compliance deadlines or issue interpretive guidance statements that “clarify" some of the more controversial regulations, said Silverglade.
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