Donald Trump thinks that regulations, particularly of the environmental sort, are preventing America from becoming Great Again, and he is on a mission to fix that. On Feb. 24, he put out an executive order aimed at dismantling said regulations, summed up neatly in his succinct Section 1 of the EO: “It is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people.”
The Environmental Protection Agency, one of the agencies tasked with implementing Trump’s orders, has asked the public for “specific suggestions regarding repeal, replacement or modification” of every single environmental safeguard on the books. The comment period, which could launch the agency’s most far-reaching and radical action in its 47-year history, will close on May 15.
In announcing plans to create the EPA in 1970, President Richard Nixon explained the need for “a coordinated attack on the pollutants which debase the air we breathe, the water we drink, and the land that grows our food.” Yet a commitment to these goals is wholly absent from any official statement on the agency’s new initiative. Nothing in the president’s directive to the EPA considers the benefits of regulations. There’s no acknowledgement of how Clean Air Act regulations have helped Atlanta’s neighborhoods tackle smog-related pollution to reduce asthma rates and lung cancer diagnoses, for example. No deference is shown for how Clean Water Act rules have returned Lake Erie to being a world-class fishing destination. The value that our environmental regulations provide—reduced health care costs, improved housing values, and flood protection, just to name a few—are often subject to cost-benefit analyses, but the language of Trump’s mandate for review makes it clear that his emphasis will be on cost, not on benefit.
Ignoring the environmental and public health mission that is at the heart of the EPA’s very reason for existence should strike all of us as an ominous omission. And it does not appear to be accidental. In his first remarks to the agency’s staff in February, EPA Administrator Scott Pruitt said that regulations “exist to give certainty to those that they regulate.” Of course, providing regulatory certainty to industrial polluters is an important part of the process, a means for achieving the agency’s goals. But it cannot be the ultimate goal itself. It is not the reason why the regulations “exist.”
The purpose of environmental regulations is to preserve for you and your family healthy air, clean water, and security of the nation’s most threatened natural resources. The rules exist to save lives. Remember, Congress passed the Clean Air Act four years after a poisonous smog killed an estimated 200 people in New York City in 1966. The statutory language insisted that the EPA set air-quality standards to protect public health without regard to cost.
And yet the EO ignores the need for government to respond to these kinds of public health exigencies. The order states that it is primarily interested in finding regulations that “eliminate jobs or inhibit job creation; are outdated, unnecessary, or ineffective; or impose costs that exceed benefits.” It may seem hard to argue with eliminating unnecessary or ineffective regulations, but it becomes a lot easier when you realize that the administration’s assessments of whether a regulation is unnecessary or inefficient could be inaccurate. In fact, the administration is likely to make mistakes when its starting point ignores the benefits protected by some of the EPA’s most fundamental safeguards.
With its current initiative, the Trump administration appears to stand alone in looking only at the costs to industry, abandoning basic economic principles and common sense. The George W. Bush administration, in finalizing its Clean Air Interstate Rule, factored in the “substantial health improvements for children from reduced upper and lower respiratory illness.” Similarly, George H.W. Bush, in revising the EPA’s Lead and Copper Rule, set a standard based on “changes in blood lead levels among young children between the ages of 6 months and 5 years.”
Even Ronald Reagan’s EPA, renowned for its emphasis on aggressive deregulation, acknowledged that “neither the [Clean Air] Act nor prudent public health protection policy requires absolute proof of health risks before the Agency invokes its authority to act.”
The effects of regulatory costs on our national economy are important, but it is also critical to recognize, as the National Academy of Sciences observed, that “compliance costs are often overestimated.” One meta-study by the Pew Research Center found “a clear pattern among corporate and trade-association opponents of overestimating the costs of regulation in their economic data.”
When the benefits of regulation are fully considered, the net gains to society often outweigh the costs. Analysis of the EPA’s acid rain program in the 1990s, for example, showed that regulations correlated with positive economic conditions and massive growth in gross domestic product—all while diminishing pollution and returning acidified streams to health.
In law school, students learn about problems of “agency capture,” when bureaucrats become too cozy with the industry executives they are supposed to regulate. It is a concept that is familiar to anyone who has complained about special interests controlling Washington, or about a revolving door between the federal government and K Street lobbying firms. Indeed, it animated then-candidate Trump’s battle cry to “drain the swamp.”
But rather than draining the swamp, the Trump administration has chosen to swim in it. The deregulation push appears to be inspired by “A Roadmap to Repeal,” a pamphlet published by the Koch-funded organization Freedom Partners. The EPA’s current leaders, in their zeal to repeal regulations at the request of industry lobbyists, risk falling short of their oaths to faithfully execute congressional directives to preserve our nation’s environment and protect our communities’ public health.
The environmental laws of our country have preserved the natural capital that we all need to thrive. Wholesale reduction of our investment in environmental protections will not achieve prosperity. Instead, it will sacrifice the valuable gains we have made, and repudiate our responsibility to preserve the foundations of our health and well-being for current and future generations. To this end, we, along with 83 of our colleagues in environmental and administrative law, submitted a detailed comment explaining the fallacies of the administration’s plan and the critical steps they could take to alleviate the problems. Of course, commenting is open to everyone; you have until Monday to add one of your own.
