The Obama legacy wasn\u2019t built in a day, and it will take Donald Trump more than a day to tear it down, despite his promise to rescind many of President Obama\u2019s actions on day one.<\/span><\/p>\n Trump can rescind Obama\u2019s executive actions with a stroke of the pen, but according to the Congressional Research Service, few of Obama\u2019s executive actions have been controversial.<\/span><\/p>\n Obama\u2019s more substantive actions will be more difficult to repeal.<\/span><\/p>\n \u201cDespite the attention paid to executive orders, not all policy initiatives emanating from the executive branch have been implemented via executive order during the Obama Administration,\u201d CRS writes in a legal sidebar. \u201dSome of the current Administration\u2019s more contentious policies were instead implemented pursuant to discretionary agency directives and guidance documents.\u201d<\/span><\/p>\n CRS advises members of Congress on policy and law. In a series of reports just before Thanksgiving, it weighed in on the president-elect\u2019s prospects for rescinding Obama Administration actions and regulations. The reports were released by the Federation of American Scientists.<\/span><\/p>\n Agency Directives And Guidance Documents<\/span><\/p>\n Like executive orders, agency directives and guidance documents can also be revoked easily, but they \u201cgenerally lack the force and effect of law,\u201d CRS writes. So revoking them doesn\u2019t have the impact of changing law.<\/span><\/p>\n For example, in October the EPA issued a guidance document on the control of emissions from the oil and natural gas industries, a sector Trump has vowed to liberate from regulation on day one. The guidance advises states on the best ways to regulate emissions from those industries, from the well to the consumer, but advise is all it does.<\/span><\/p>\n \u201cThis document does not impose any requirements on facilities in the oil and natural gas industry,\u201d the document states. \u201cIt provides only recommendations for air agencies to consider in determining\u201d reasonably available control technologies.<\/span><\/p>\n Trump could rescind that guidance on day one, but on day two the oil and natural gas industries will still face the same regulations from state air agencies.<\/span><\/p>\n Some of the most powerful directives guide federal agencies themselves. For example, in 2013 the Justice Department instructed federal prosecutors not to enforce marijuana prohibitions in states that have legalized its use. Trump could repeal that.<\/span><\/p>\n Policy guidances steer several agencies\u2019 actions on energy and the environment. Those were inspired by executive orders:<\/span><\/p>\n Executive Orders And Presidential Memoranda<\/span><\/p>\n While most of Obama\u2019s executive actions have not been controversial, according to CRS, a small number have been very controversial. For example, in 2009 he used an executive order to rescind barriers to stem cell research, and this year he used a presidential memorandum to normalize relations with Cuba. Trump could rescind those on day one.<\/span><\/p>\n The most powerful executive actions concerning energy and environment are probably several directives requiring federal leadership on sustainability. The most recent of these, issued in March 2015, requires federal agencies to reduce their direct greenhouse gas emissions at least 40 percent by 2025. Federal agencies also must to reduce their energy intensity, improve the efficiency of their buildings, prefer sustainable products and clean technologies, and derive increasing amounts of energy from renewable sources.<\/span><\/p>\n Obama hoped to put the muscle of the federal government behind the clean-energy revolution. Trump could reverse that on day one.<\/span><\/p>\n A 2013 executive order directs federal agencies to consider and prepare for the impacts of climate change. Trump, who has called climate change a hoax, could also undo that on day one.<\/span><\/p>\n Rules and Regulations<\/span><\/p>\n But Trump will need many more days to undo Obama\u2019s most sweeping environmental regulations\u2014the Clean Power Plan, the Mercury and Air Toxics Standard, the Clean Water Rule, the Ozone rule, the Cross-States Air Pollution Rule, bans on Arctic and Atlantic offshore drilling. These cannot be undone in a day, according to CRS:<\/span><\/p>\n Agency rules and regulations may also be repealed by a new administration; however, the repeal process can be time consuming and must comply with certain mandated procedures. The vast majority of agency \u201crulemakings\u201d must comply with the APA\u2019s notice and comment process, which requires an agency to provide the public with notice of a proposed rulemaking and a meaningful opportunity to comment on the rule (generally lasting 30 days or more). The APA explicitly defines rulemaking as \u201cthe agency process for formulating, amending, or repealing a rule.\u201d Thus, whether issuing a new rule, or amending or repealing an existing rule, agencies are typically required to engage in the same notice and comment process. The APA provides explicit exceptions to the notice and comment requirements, including when agencies can show \u201cgood cause\u201d for why such procedures would be \u201cimpracticable, unnecessary, or contrary to the public interest.\u201d At times, agencies have relied on this narrow good cause exception as justification for not engaging in notice and comment prior to repealing a rule; however, these arguments have typically been rejected by the courts.<\/span><\/p>\n In light of these principles, and in the absence of specific statutory requirements, it would appear that a new President can generally direct executive branch agencies to revoke existing rules. In implementing that direction, however, the agency will likely have to engage in the notice and comment process to effectuate the repeal, and, in the case of a challenge to the repeal, provide a \u201creasoned analysis\u201d for its decision to repeal the rule.<\/span><\/p>\n<\/blockquote>\n That doesn\u2019t mean Trump can\u2019t undo these rules, but he can\u2019t undo them on day one. One expert told E&E\u2019s Emily Holden that it could take more than two years to dismantle the Clean Power Plan, even though it hasn\u2019t yet been implemented.<\/span><\/p>\n If the Trump Administration rescinds these rules, it leaves itself vulnerable to lawsuits from injured parties:<\/span><\/p>\n \u201cAn agency\u2019s repeal of a rule may generally be challenged by an injured party and will be subject to the same standard of review as new rules, namely \u2018arbitrary and capricious\u2019 review,\u201d CRS writes. \u201cUnder this standard of review, a reviewing court will consider whether the agency has \u2018examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a \u2018rational connection between the facts found and the choice made.\u2019\u201d<\/span><\/p>\n Obama\u2019s most vulnerable regulation is probably the Interior Department\u2019s 2015 rule regulating hydraulic fracturing operations on federal lands. It requires reinforcement of wellbores and storage tanks to protect groundwater, and it requires drillers to disclose the chemicals they use. It was struck down by a Wyoming judge who determined Congress hadn\u2019t given Interior the power to regulate.<\/span><\/p>\n The Obama Administration filed an appeal, and Trump could simply drop the appeal. If Trump drops the appeal, oil companies would be spared from regulations they haven\u2019t yet faced, but only those drilling on federal lands. It would have no effect on most fracking operations, which take place on private land.<\/span><\/p>\n Trump can halt the progress on any new rules that have not been finalized, a slew of which are now in process, and with help from Congress, he can also dispense with Obama\u2019s recently finalized regulations. The Congressional Review Act allows Congress to revoke regulations that have taken effect within the last 60 legislative days\u2014which will translate, when Trump takes office, to regulations finalized since May.<\/span><\/p>\n The Act has been used to revoke only one regulation since it was passed in 1996, an ergonomics rule implemented by Bill Clinton and overturned soon after George W. Bush was elected.<\/span><\/p>\n CRS has compiled a list of 48 major regulations vulnerable to congressional review, and Clyde Wayne Crews Jr. of the Competitive Enterprise Institute, which seeks to reduce regulation, has compiled a list of 140.<\/span><\/p>\n It can\u2019t happen on day one, but with a majority vote in both houses of Congress, Trump could halt regulations including:<\/span><\/p>\n Source:\u00a0http:\/\/www.forbes.com\/sites\/jeffmcmahon\/2016\/11\/28\/what-trump-can-undo-on-day-one-according-to-the-congressional-research-service\/#789c82613fbc<\/span><\/p>\n\n
\n