The Trump administration is pushing to slash federal rules and regulations that impact nearly all aspects of American life. In March, EPA administrator Lee Zeldin announced that the agency would roll back 31 regulation in what he called “the greatest and most consequential day of deregulation in U.S. history.”
That was after President Trump in February gave the heads of more than 400 federal agencies 60 days to identify rules that they claim are unlawful, unconstitutional or have an undue burden on industry in order to “commence deconstruction of the overbearing and burdensome administrative state.”
They’re looking to cut everything from chicken processing safety rules and staffing at nursing homes, to protections for coal miners against the lethal dust they can breathe in.
It usually takes a year or more to repeal a federal regulation. However, Trump wants to move more quickly, directing agencies to bypass the lengthy legal requirement that proposed rules be posted for public comment.
The Allegheny Front’s Julie Grant spoke about the mass deconstruction of the nation’s regulations with Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. Freeman served as Counselor for Energy and Climate Change in the Obama White House.
LISTEN to the interview
Julie Grant: Can you tell us more about the scope of what President Trump has ordered and give some historical context?
Jody Freeman: So, just focusing on the environmental, climate, energy front, there’s a collection of executive orders that are seeking to do unprecedented rollbacks of all climate environmental rules that the Biden administration adopted, certainly. And in fact, trying to go beyond those rules to do something I think quite sweeping, which is to invite agencies to scour their regulations.
For rules that the administration feels are either, in its view, unconstitutional or otherwise unlawful under its interpretation of some Supreme Court decisions, and to decide summarily about those rules that they should be immediately rescinded with no process, with no normal legal process.
Julie Grant: Isn’t it common for a new administration to try to undo actions of its predecessor on things that it disagrees with?
Jody Freeman: Overall, it looks initially like the rollback you might expect of any, say, Republican administration, where you expect them to weaken climate regulations that control greenhouse gases or to weaken rules that are about environmental protection. But what’s notable here is this quite potentially sweeping move to just cut out the public process and immediately rescind rules that they decide aren’t legal without even courts deciding that they’re right about that.
Julie Grant: Can they do this? Can they repeal regulations like this?
Jody Freeman: You know, rarely do we law professors get to say this on the radio or TV, plain and simple, no. It’s not complicated, it’s not nuanced, you cannot just announce in the way that the president did in an executive order that you don’t have to do notice and comment sort of “because I say so,” which is really what this executive order purported to do.
“This is the Trump administration, not just rolling back environmental rules and climate rules, but…basically saying there’s only one boss here, and the boss here is the president.”
The governing law here is called the Administrative Procedure Act. It sounds super boring, and most people think it is. I, of course, think it’s a rock star statute because what it does is tell the government how to issue rules: If it’s going to impose costs on the private sector, the process they have to go through. It’s a very elaborate, detailed, deliberate process because regulation is a serious business.
They have to give notice of what they’re proposing, and they have to take public comment — that usually takes, you know, can be up to a year or two to issue major regulations. And that requires the government to take in the views of all the affected stakeholders. After that, they issue a rule.
They have to give their reasons. It’s really complicated. They have to explain the legal basis of what they’re doing. You have to explain the technology and economics they’re relying on, and so on. Only then is the rule issued as a final published regulation. Then it’s subject to legal challenge for being arbitrary or capricious. That’s a normal process.
Julie Grant: The administration says it’s justified because one of the exceptions in the Administrative Procedure Act.
Jody Freeman: There’s a “good cause” exception, which says government can skip notice and comment in certain narrow circumstances if it’s impracticable or unnecessary or in the public interest.
That’s not what the Trump administration is doing. What they’re saying is, “because we think they’re illegal, it’s in the public interest to skip notice and comment.”
And why does this matter? Because basically, it’s a short circuit of the entire legal process. It makes the Trump administration the judge of what’s lawful, so they’re replacing the courts. They’re also sort of pretending Congress doesn’t exist because Congress passed all these environmental statutes, and [Congress] required notice and comment to be done, and they expect those procedures to be observed.
So, to me, this is the Trump administration, not just rolling back environmental rules and climate rules, but really, again, basically saying there’s only one boss here, and the boss here is the president.
Julie Grant: In the courts, would people who want to challenge that have to go rule by rule? I mean, if there’s this mass repeal of rules, what happens?
Jody Freeman: Well, that is a kind of flood of decisions that would have to be litigated in individual lawsuits. I mean, that can be done. They are, of course, flooding the zone with these policy changes. But, you know, there are organizations that are prepared to challenge them in court.
We already see well over 150 lawsuits — I’ve lost count now — challenging various things the administration’s doing. So I have no doubt there will be legal challenges, and there will be lots of time spent arguing over whether they can do what they’re purporting to do.
The problem with it is it’s all a setback for progress on climate change, right? It’s all putting sand into the gears. It’s slowing down progress. It’s costing money and resources and everybody’s attention on these issues when what we could be doing is helping support the adoption of electric vehicles, right, or the electrification of buildings, or the greening of the grid, and more solar and wind power.
We could make a ton of progress, which is what the Biden administration was trying to do. And where the market was headed anyway, with the power sector increasingly moving to a mix of energy that’s cleaner and greener. And now the Trump administration is really just putting a halt on that progress to the extent they possibly can.
Julie Grant: We’ve heard the legal arguments to justify regulation repeals before. Are you seeing the administration do anything that’s not been done before?
Jody Freeman: What’s new now with the Trump administration is a very aggressive move to block the states from doing something on these issues, and a hyper-aggressive move to interfere with the private sector.
The administration, the president signed an executive order that instructed the attorney general to investigate state climate and clean energy policies, specifying certain ones, picking certain ones that they really want focus on, like California’s cap and trade law, and new state laws that try to allocate liability to the fossil fuel industry for damages from climate change, and things that touch on environmental justice, specifying these things.
“Here’s a use of the Department of Justice to actually trample on the state’s prerogatives to adopt their own climate and clean energy policies. And so that is really in its scope is aggression. That’s really new.”
It’s basically saying the attorney general investigates all these laws that should not be enforced. In other words, determine whether they shouldn’t be enforced, presumably telling the Attorney General with this executive order to file lawsuits, to try to block the states, and argue that what they’re doing is unconstitutional, or argue that what they are doing is preempted by federal law, or find other reasons.
So here’s a use of the Department of Justice to actually trample on the state’s prerogatives to adopt their own climate and clean energy policies. And so that is really in its scope is aggression. That’s really new.
Likewise, you see the administration threatening private banks and insurance companies and other financial institutions that have formed coalitions around trying to make progress on climate change, coalitions on net zero commitments — threaten those coalitions as if they are colluding in violation of antitrust law, using the federal government’s weapons to dissuade people from trying to do this together. And a lot of those coalitions have disbanded or taken a step back or gone silent out of fear of investigation.
It’s a very punitive approach. It’s not just saying, “hey, we want to weaken the rules a little bit at the federal level.” It’s like saying “we want to revive coal, we wanna revive fossil fuels, we’re gonna open up as much public land as we can,’ (whether the market wants to or not. It’s not even clear the market wants to). ‘We’re gonna instruct agencies to find emergency powers to try to permit more fossil energy,’ when it doesn’t seem like we’re in an energy emergency.
We are the largest producer of oil in the world, and we have approximately a gajillion cubic feet of gas from fracking. Like, we’re not in an energy emergency. So the idea that we’re going to use emergency powers so that we can accelerate permitting and so on — all of this is a concerted effort to stop action on climate, to penalize the states that want to move forward, to roll back funding under the Inflation Reduction Act and do all of this together in a coordinated way that will intimidate anybody from making progress.
Jody Freeman is the director of the Environmental and Energy Law Program at Harvard Law School.
