Administrative Law Acts as a Wall to Trump Administration’s Rollback of Obama-Era Environmental Regulations.

Administrative Law Acts as a Wall to Trump Administration’s Rollback of Obama-Era Environmental Regulations.

 By: Anonymous

Since the early days of his campaign, President Trump has promised to rollback Obama-era environmental regulations,[1] and the strides made by President Obama in addressing climate change. Trump’s main soundbite was how “stupid” and “job killing” the Clean Power Plan is, and how he would bring back coal mining jobs.[2] In March, Trump signed an executive order that called on Secretary Scott Pruitt of the Environmental Protection Agency (EPA) to take steps to dismantle the plan.[3] However, the rapid-fire push by the Trump administration to wipe out significant chunks of the Clean Power Plan is running into a brick wall.[4] That brick wall? Administrative law. The EPA has broad discretion to reconsider a regulation at any time, however, to do so, they must comply with the Administrative Procedure Act (APA), including its requirement for “notice and comment.”[5] Under the APA, which governs most federal regulations, agencies must follow specific procedures for changing a rule.[6] Since the Clean Power Plan is a regulation that underwent notice and comment rulemaking, the EPA has to follow the same rule-making system used to create it in order to repeal it.[7] “Any agency’s proposed rulemaking must [be] open up public comments, receive comments and evidence, then you have to justify the decision.”[8] This public comment period typically takes time, and the EPA must consider and respond to all the public comments on the proposed rule and develop a record that shows they thoughtfully considered each.[9] If the Trump administration attempts to skirt these procedural rules in revising or dismantling the Clean Power Plan, court action is inevitable.[10]

Adding to the wall, the United States Supreme Court held in FCC v. Fox[11] that if an agency wants to change a regulation already promulgated, it must defend the new rule the way it would the original rule, and defend the change as non-arbitrary.[12] The courts will invalidate a rule change that, in its substance, appears arbitrary.[13] Because the Obama Administration gathered an immense amount of scientific data to support the promulgation of the Clean Power Plan, the Trump administration cannot simply ignore the science and established administrative record in their revision of the plan, or else the new revision may be struck down as arbitrary.[14]

Finally, in adding more bricks the administrative law wall, the Trump administration may have trouble in creating a new regulation without actually acknowledging that greenhouse gasses endanger the public health and welfare.[15] Under a landmark EPA decision in 2009, known as the endangerment finding, the EPA is required to regulate greenhouse gases.[16] Because of the endangerment finding, if the Trump Administration were to promulgate a revised regulation, it would effectively accept that the federal government has a role in addressing the reduction of greenhouse gases.[17]

Because of the brick wall that is administrative law, drawn-out court battles are inevitable and it could prevent the Trump administration from rolling-back any Obama-era environmental regulations before the 2020 election.[18] Good looking out, administrative law.

[1] Lisa Friedman, Trump Takes a First Step Toward Scrapping Obama’s Global Warming Policy, N.Y. Times (Oct. 4, 2017),

[2] What is the Clean Power Plan, and How Can Trump Recall It?, N.Y. Times (Oct. 10, 2017),

[3] Id.

[4] Eric Lipton, Courts Thwart Administration’s Effort to Rescind Obama-Era Environmental Regulations, N.Y. Times (Oct. 6, 2017),

[5] Id.

[6] John McQuaid, Make America Wait Again: Trump Tries to Delay Regulations out of Existence, Scientific American (July 24, 2017),

[7] What is the Clean Power Plan, N.Y. Times, supra note 2.

[8] McQuaid, supra note 6 (quoting Robert Routh, Attorney, Clean Air Council).

[9] Brad Plumer, If Trump Wants to Dismantle Obama’s EPA Rules, Here are all the Obstacles He’ll Face, Vox (Jan. 18, 2017),

[10] Id.

[11] FCC v. Fox TV Stations, Inc., 556 U.S. 502 (2009).

[12] Plumer, supra note 6.

[13] Id.

[14] Id.

[15] Id.

[16] Friedman, supra note 1.

[17] Id.

[18] What is the Clean Power Plan, N.Y. Times, supra note 2.

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