Environmental attorneys argue that two new White House directives aimed at significantly increasing executive power to annul federal energy and environmental regulations are unlikely to withstand judicial scrutiny and are an overreach of presidential authority.
“I do not think this even comes close to passing the test for legality,” stated Andres Restrepo, a senior attorney in the Sierra Club’s Environmental Law Program, regarding the April 9 executive order, “Zero-Based Regulatory Budgeting to Unleash American Energy”.
The order instructs the Environmental Protection Agency, Department of Energy, and other federal bodies to include a sunset provision in their energy production regulations, which would lead to the repeal of such regulations within a year unless extended. This targets rules under the Endangered Species Act.
In a statement, the Center for American Progress, a public policy organization, cautioned that implementing this order would lead to significant administrative chaos and uncertainty, impacting energy and environmental regulations.
Restrepo criticized the arbitrary cut-off date for regulations, stating it disregards statutory requirements and lacks a solid evidentiary basis, labeling it unlawful. He noted a possible inspiration from an Idaho law with a similar sunsetting provision.
The Administrative Procedure Act governs federal regulation, lacking language for automatic expiration, as federal agencies develop regulations based on Congress-passed laws.
“It makes no sense. It is impossible to implement. It reflects a complete lack of understanding of how government works,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School.
Peskoe suggested the administration might be influenced by comments from billionaire Elon Musk about applying “zero-based budgeting” to federal governance, a strategy Musk used at Twitter.
When asked about the order’s legality, a White House representative referred to a fact sheet emphasizing the order’s aim to modernize American energy regulation.
The presidential memo, “Directing the Repeal of Unlawful Regulations”, cites a previous order directing agencies to identify and prioritize repealing regulations conflicting with recent Supreme Court decisions.
“You can’t just repeal a regulation on the books without a notice and public comment process,” Peskoe noted, emphasizing the inevitable legal challenges.
The Administrative Procedure Act mandates a specific process for repealing regulations, including public comment incorporation.
The memo’s reference to a “good cause” exception for bypassing rulemaking has been narrowly defined by courts, applicable only in emergencies, Restrepo explained.
“This memorandum gives the administration a tool to eliminate any undesirable rule,” said Erik Schlenker-Goodrich of the Western Environmental Law Center, expressing concern over potential Supreme Court rulings in favor of the directives.
Restrepo warned of a complete deregulation of public health and environmental protections if upheld in court, though he views such an outcome as unlikely. He anticipates significant resource expenditure defending these directives.
Schlenker-Goodrich described the orders as part of broader efforts to centralize power within the presidency, diminishing federal agency roles.
“No administration in my lifetime has exercised authority in such an extreme manner,” he said, fearing a regression in environmental protections reminiscent of pre-Clean Air and Water Act conditions.
“It is truly a five-alarm moment,” Schlenker-Goodrich stated.
Original Story at insideclimatenews.org