Poisoning America: The Trump Administration’s Regulatory Shell Game
15 Pages Posted: 17 Nov 2020 Last revised: 27 Apr 2021
Date Written: September 30, 2020
This Article, written as part of a conference honoring Professor Richard Stewart on his 50 years as a legal academic, focuses on the inconsistent manner in which the Trump Administration has dealt with three of the most important conceptual issues that are central to the design of environmental policy: cost-benefit analysis, federalism, and the treatment of dirty, old sources of pollution. It has acted in a patently inconsistent way in different proceedings, embracing co-benefits in some cases and decrying their use in others; extolling the virtues of state decision-making in some cases and running roughshod over such decision-making in others; taking extreme actions to protect existing, dirty sources in some cases, and celebrating their replacement in others. The Trump Administration has simply taken whichever side of each of these arguments would advance its deregulatory policies. Though inconsistencies across different regulations — as opposed to inconsistencies within a single regulation — have not been a core concern of the Administrative Procedure Act, its prohibition on “arbitrary and capricious” agency action is sufficiently capacious to embrace egregious actions of this type.
Keywords: Environmental Law, Cost-Benefit Analysis, Federalism, Regulatory Affairs, Deregulation, Administrative Law
JEL Classification: K20, K23, K30, K32
Suggested Citation: Suggested Citation