Indeconstructible: The Triumph of the Environmental ‘Administrative State’
73 Pages Posted: 13 Aug 2018
Date Written: July 26, 2017
Shortly after the 2017 Presidential inauguration, a senior advisor to the President proclaimed that a top priority of the Administration would be the “deconstruction of the administrative state.” A primary target of the Administration’s deconstruction efforts was EPA and federal environmental regulations. While the President can use a variety of tools, including the appointment power, budget power, treaty power, and executive orders, to influence the manner in which EPA and other agencies interpret and enforce laws, the President has very little power to unilaterally “deconstruct the administrative state.” The “administrative state” is a creation of Congress and the President can only “deconstruct” it with the full cooperation of Congress, and, despite the rhetoric, the current Congress does not appear willing to eliminate agencies or significantly reduce or eliminate their powers. Without Congressional support, the Constitution, the Administrative Procedures Act, and the statutes that create administrative agencies and give them their power create a complex system of checks and balances on the President’s power to “deconstruct the administrative state.” Within his first few months in office, the President took several steps under his appointment power, budget power, treaty power, and other executive powers to attempt to weaken EPA and the Department of Interior and to roll back environmental protections. For each of the actions that the President took or proposed to take to dismantle environmental regulation, though, there is a corresponding set of checks and balances. The President’s budget and appointment power, for instance, is shared with Congress, which can reject or modify his actions. To the extent that the President acts through Executive Orders, he can only act within the authority already granted to the Executive branch by the Constitution and Congress and his actions can be unilaterally overturned by the next President through another Executive order. To the extent that agencies choose to repeal or revise regulations in response to the directives in the Executive orders, principles of administrative law require the agencies to follow rulemaking procedures of the APA, which provide for ample public participation, and require agencies to support their decisions to repeal or revise regulations with reasonable explanations that are not based solely on the change in Administration. The procedures for changing those rules are time-consuming and resource intensive. The environmental laws and the APA provide citizens with the opportunity to challenge the agency’s actions in court, which guarantees that the judicial branch provides an additional check on the Executive action. To the extent that agencies decide that they will not promulgate new rules or will not enforce existing rules, the administrative and environmental laws provide additional checks on such agency inaction. The environmental laws frequently authorize States to administer and enforce the federal laws in place of EPA. In addition, those laws authorize States and citizens to sue to enforce the laws even when the federal government will not bring an enforcement action. Those same laws frequently require agencies to adopt regulations in some instances, and allow citizens to sue the agencies if they don’t adopt those rules. In addition, even if agencies are not required by law to adopt rules, the APA authorizes citizens to petition agencies to make rules, and authorizes citizens to challenge the agencies’ decisions to deny those requests. The federal environmental laws provide further protection for the environment because they generally provide that states and local governments can establish and enforce their own environmental laws that are at least as stringent as the federal law. Thus, even if the federal agencies are not enforcing their laws, States and local governments can enforce their own laws to protect the environment.
Keywords: Epa, Deconstruction, Trump, Deregulation, Rulemaking, Checks
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