By Visiting Professor Jeffrey Thaler
“It’s the End of the World as We Know It (And I Feel Fine),” a 1987 song by R.E.M. used during a 2015 campaign rally without the band’s permission by then-candidate Donald Trump, sparked a sharp objection by the band’s Michael Stipe. Flash forward to 2017 and now-President Trump has been flexing his executive powers in a number of legal fields; for many environmental, energy, or immigration lawyers it’s the end of the regulatory world as we knew it for decades, and they are not feeling so fine.
I won’t discuss rock bands and campaign songs (Stephen Colbert and Jack Black have done so already); rather, there has been surprisingly little law or litigation developed since the 18th century concerning the scope and limits of Executive Orders, and that is why this post may be of assistance to practitioners facing a coming deluge of POTUS Executive Orders, Proclamations, or “Guidances.”
Executive Orders (EOs) raise classic constitutional law issues of the separation of powers, in that they often are used for “executive legislating” even though there is no explicit constitutional authority for them. EOs also blur traditional regulating lines, because they are not issued with public notice or comment, and usually state that they do not “create any right or benefit enforceable at law or in equity by any party against the United States.” The first EO, issued by George Washington in 1793, declared America’s neutrality in the war between France and Britain. That EO sparked a disagreement between two leading Founding Fathers – Alexander Hamilton said the EO was lawful, while James Madison said it represented the type of monarchy behavior that they had fought.
Since 1794, over 13,700 EOs have been issued. EOs are generally directed to agencies and government officials, while proclamations tend to generally be directed to private individuals. An EO can have the force of law, like notice-and-comment rulemaking by agencies pursuant to authority delegated by Congress, if the EO is based on either the Constitution or a statute, per the Supreme Court [SCOTUS]’s 1954 Youngstown decision. That is why one must carefully read each EO to determine the grounds of its authority, and then whether it is possibly contrary to a) existing laws or b) constitutional provisions such as due process or equal protection.
We now again flash forward to the present, and the recent uses of EOs by POTUS’s Obama- who especially used EOs in his last two years in office, as opposed to Congressional bills (see this prophetic 2014 Saturday Night Live) — and Trump. The two Trump EOs that have garnered the most publicity and outcry deal with immigration restrictions; the first EO was challenged in numerous courts, and the 9th Circuit issued on February 9 the first appellate decision on a Trump EO. Interestingly, and instructive for future litigants and legal counsel, the first issue addressed by the 9th Circuit, and the one they discussed the most, was…..standing. Then reviewability, and only briefly due process and equal protection. The complaint’s count on violating the Administrative Procedure Act for not following proper rulemaking proceedings was not even discussed in the ruling.
Of more relevance to environmental and energy lawyers is the January 30, 2017 EO entitled “Reducing Regulation and Controlling Regulatory Costs,” aka the 2-for-1, no-increase in incremental costs [undefined] of R[egulations]OTUS EO, and the following February 2, 2017 Interim Guidance (IG) of the OMB implementing (and implicitly amending) the EO by limiting it to “significant regulatory actions”- i.e. those of $100 million or more of annual effect on the economy. The EO and IG were a week later challenged in federal court in D.C. as violating the APA, separation of powers, the Constitution’s “Take Care Clause”, and as being ultra vires. Plaintiffs referenced in part OSHA, TSCA, the ESA and CAA, and other energy/environmental laws as being inconsistent with the EO’s requirement that a new rule can only be promulgated if its cost is offset by the “deregulation” (aka repeal) of two existing rules. The EO’s other significant aspect is that it signals the possible demise of cost-benefit analysis – which, ironically, was first mandated by then POTUS Ronald Reagan by an EO in 1981- by disallowing consideration of the economic benefits of a regulation when weighing its costs.
Many more EOs are promised in the coming weeks concerning a variety of environmental and energy laws and regulations. Early in the wave was the February 28, 2017 EO with the majestic name of the EO on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ [aka WOTUS] Rule.” This EO directs the EPA to review the WOTUS Rule while keeping in mind the national interest of “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” Since WOTUS was a final rule published in the Federal Register, it can only be repealed and replaced by a new rule that goes through full notice-and-comment rulemaking, not simply by a non-legislative guidance or policy statement.
As for climate change, one who lives by the EO sword can slowly die from it too. POTUS Obama did not submit for approval to Congress the Paris Climate Change Agreement of 2016, calling it an “executive agreement,” thus POTUS Trump does not need Congressional approval to undo it. However, the Agreement terms do not allow withdrawal by a party before November 2019. Yet, the U.S. could withdraw from the overarching United Nations Framework on Climate Change with one year notice, if the Senate approves, and that in effect would undo our Paris “commitments.” And as a practical matter, the current Administration could also just choose not to implement the Paris obligations, because there is no binding duty to hit the emission reduction targets.
In sum, we live in interesting times. Although Jack Black has said “It’s the end of the world,” for lawyers, law students, and clients it’s the start of some fascinating litigation and regulatory maneuvering.