ILMA Compoundings January 2018 - 36

COUNSEL COMPOUND

How is Regulatory Reform
Shaping Up Under
President Trump?
By Jeff Leiter

resident Donald Trump will be
finishing his first year in office
this month, and much of the
news analyses will focus on his tweets
and whether his use of social media
has helped or harmed his agenda.
What is largely being overlooked is
the president's remaking of federal
regulatory policy that started on his
10th day in office with the executive
order that directed agencies to eliminate two existing regulations for each
new one created. Since that time, the
White House has repeatedly emphasized the virtues of growth-promoting
deregulation.
What is being missed is that Trump
has not backed up his deregulation
rhetoric with definite actions. He has
signed into law more than a dozen resolutions passed by Congress under the
Congressional Review Act, invalidating Obama administration rules. The
Trump administration has initiated
steps to withdraw other Obama-era
rules, such as EPA's Clean Power Plan
and the Waters of the U.S. rule. The
president has also issued other executive orders targeting regulations and
their costs.
What is more interesting to me is
what the long-term impact will be for
ILMA members after this first-year
frenzy of activity ends and the deregulation efforts really set in. Let's start
with the widely shared understanding
that "deregulation" means reducing
the scope or stringency of federal rules,
rather than meaning no regulation at
all. Reducing "scope" typically means

JANUARY 2018

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reducing the number of affected facilities or parties or the conduct that is
being proscribed. Reducing "stringency" typically means lowering costs to
satisfy regulatory mandates.
While deregulatory efforts that
eliminate rules altogether attract
attention and opposition and may be
measured by comparing annual Federal
Register page counts, the probable
"scope and stringency" response going
forward will be to eliminate or exempt
more entities from a particular rule.
For example, the EPA simply could
increase the size threshold for "small
businesses" that could qualify for a cap
on emission limits.
Another deregulation concept
maintains a rule's scope and stringency but attempts to make it more efficient and streamlined. The goal here
is to achieve the underlying policy
goal at a lower overall regulatory cost.
This concept is not controversial, and
it was the basis of an Obama administration executive order requiring
agencies to periodically assess their
rules. Trump has embraced this concept by ordering agencies to eliminate
rules that "are outdated, unnecessary
or ineffective." However, this form of
deregulation requires a fair amount
of mundane, yet detailed work, and
I question whether the White House
will keep pressure on the agencies to
devote the appropriate resources to
get this job done.
There is a variant of the above two
deregulation concepts that focuses on
eliminating particular costs of federal

What is more
interesting to me
is what the long-term
impact will be for ILMA
members after this
first-year frenzy of
activity ends and the
deregulation efforts
really set in."
rules. The best way to describe this
concept is to point out that, while
the importance of a regulatory issue
might ebb and flow, some regulatory
costs, such as job losses and compliance expenses, remain constant. The
deregulation concept here is to address
Trump's critique of regulations as "job
killers" by identifying those rules that
eliminate or inhibit jobs. However,
here in D.C., there is a hearty debate
over whether the empirical data exists
to link regulations to job losses. ILMA
members will continue to see this
issue hammered home by the Trump
administration.
The other side of this same coin is
the effect of regulations in imposing
delays, such as environmental permitting for infrastructure projects. The
president and deregulation proponents
want to streamline assessment and
permitting rules to cut into interest
groups' ability to raise regulatory
objections simply because the groups

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ILMA Compoundings January 2018

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