The second Trump Administration has pursued an aggressive deregulatory agenda, with a particular focus on environmental regulation. From day one the Administration has sought to roll back regulatory burdens and curtail the regulatory reach of administrative agencies, the Environmental Protection Agency in particular. With a few notable exceptions, these deregulatory efforts have relied upon presidential unilateralism–a combination of executive orders, presidential directives, and agency actions that lack legislative support. In this regard, the Trump Administration has built upon–and dialed up– the degree of presidential unilateralism we have come to expect in the twenty-first century.
One consequence of this approach to regulatory policy is that little of what the Trump Administration is achieving will be particularly sustainable. Executive Orders can be rescinded just as easily as they are issued. Deregulatory short-cuts, such as aggressive assertions of “good cause” to avoid notice and comment–if successful–will be available to Trump’s successors to move policy in the opposite direction.
Those few areas in which the Trump Administration’s are likely to be the most lasting are likely to be those in which the Administration has foregone presidential unilateralism, and has instead sought to work with, or have its actions reified by, other branches. So, for instance, deregulation resulting from the passage and signing of Congressional Review Act resolutions will be more lasting and sustainable than that accomplished through the administrative process. And insofar as the Trump Administration is claiming that certain deregulatory moves, such as repeal of the “harm” definition under the Endangered Species Act, these actions will only be successful if the underlying statutory interpretations embraced by the Trump Administration are ultimately embraced by the courts.
The above, at least, is the argument I make in “Unsustainable Presidential Administration,” my contribution to a forthcoming Harvard Environmental Law Review symposium on environmental law in the first 18-months of the second Trump Administration. My essay is now up on SSRN, and will be published as part of a stellar symposium issue later this year.
Here’s the abstract:
The first Trump Administration prioritized speed and salience over legal soundness, and its unilateral deregulatory efforts—some fairly characterized as “regulatory slop”—were largely undone once Trump left office. This essay argues that the second Trump Administration, despite being more prepared and more aggressive, has not learned this lesson: it continues to elevate executive branch unilateralism over the slower, harder work of legislative or judicial engagement. The administration’s reliance upon executive orders and unilateral action has sacrificed sustainability for speed. Where the administration’s efforts are most likely to result in lasting legal or policy change, the administration is relying upon cooperation with other branches, such as by working with Congress to pass Congressional Review Act resolutions or prompting judicial review and endorsement of new understandings of existing environmental laws.The Administration’s unilateral actions may be consequential, but they are not sustainable: lasting change to environmental law will come only through legislation or judicial ratification, not executive decree alone.
