The Obama administration has been both cheered and vilified for releasing a lot of new environmental regulations over the last few years. Texas conservative political leaders have become well-known for challenging those rules in court. But now that the clock is running down on President Obama’s second term, what’s in store for those regulations when there’s a new president in office?
First of all it may not matter as much as you think whether the next president is a Democrat or a Republican. Either way, it’s really hard to abolish rules once they’re on the books.
Jim Rubin is an environmental law attorney. He also worked at the Department of Justice.
“There are clearly soundbites [in which the] president says ‘I’m going to wipe out these rules in the first hundred days.’ It’s just not easy to do. That happened in the Bush administration for Clinton rules, and nothing really changed that dramatically.”
The reason is that the process for removing rules is every bit as complicated as the process for implementing them. In some cases, you can't overturn the rules unless you can overturn the science the rules are based on. That being said, the more recent the rule was put in place, the more vulnerable it might be. Tom McGarity is a professor of environmental regulation at the University of Texas School of Law
“I think that was in the back of President Obama’s mind back in 2013 when he came up with his climate action plan, when he told the EPA in no uncertain terms, ‘I want that final rule out by June of 2015.’”
Getting that rule done last summer – a year and a half before the President's term ends – meant the rule wouldn't be threatened by what's called the Congressional Review Act, which gives congress 60 legislative days to try revoke a regulation after it’s enacted. But Rubin says for it to work, it requires both houses of Congress and the new president to want to revoke the rule.
“That’s a pretty potent tool, but it’s only been used once, because it's hard to do.”
And obviously Obama wouldn't revoke his own rule.
So what about legal challenges to regulation like the ones Texas is so well known for? Even if the next president agrees with those challenges, there will still be plenty of groups interested in defending the regulations. In fact, Rubin says, the parties attacking and defending a rule just flip sides.
“I was working in regulation at the end of the Bush administration, Bush One. We were being sued by the NGOs, and industry joined our side. And once Clinton came in, the parties shifted and the NGOs ended up running the agency, and the industry was on the other side. So the litigation continues, it’s just the parties shift.”
But he says the ever-present threat of lawsuits means Obama officials are probably right now prioritizing which rules they have time to enact successfully before the clock runs out.