United States: Wild Ride Ahead For Stakeholders Affected By Regulatory Changes

While some of the Trump administration's regulatory changes may be effected immediately through executive order, the most significant measures will need to grind their way through the administrative process and survive a gauntlet of legal challenges. As practitioners advise their clients on what to expect in this shifting landscape, a number of trends are beginning to emerge.

Incoming administrations naturally want to buy time to review their predecessors' positions and develop a strategy for implementing change. The Trump administration is no different, and the Justice Department has filed a flurry of requests to hold cases in abeyance and postpone hearings. Similarly, EPA and Interior have announced administrative stays of Obama-era regulations in the crosshairs, and proposed extending compliance deadlines.

What's notable is the growing number of court challenges to these delays. A variety of states, NGOs, and other stakeholders are challenging delays in implementing EPA's and DOI's oil-and-gas methane regulations; EPA's one-year delay for designating attainment areas under the 2015 ozone standards; the agency's 20-month delay of its facility accident prevention rule; and EPA's indefinite delay of the power plant effluent-limitation guidelines.

In a significant development, the D.C. Circuit set aside EPA's 90-day stay of methane standards for new oil and gas sources, holding that it was reviewable because it was "tantamount to amending or revoking a rule" and not supported by the record. When DOJ asked the court to delay issuing its mandate for 52 days, the D.C. Circuit gave it only two weeks, to prevent EPA from running out the clock. Although a narrow ruling, it signals that the courts will take a hard look at agency justifications. Expect to see more decisions soon on the "power to delay."

Policymakers have significant discretion to change direction, but policy preferences are not the only dynamics at play. DOJ, for example, will also give consideration to long term institutional interests that transcend administrations. Nowhere was this more evident than in the Fourth Circuit's dismissal of a citizen suit brought against the Obama EPA by coal company Murray Energy. In January, the company had convinced a judge in West Virginia to issue a sweeping injunction requiring retroactive evaluations, under the court's continuing supervision, of the employment effects of all Clean Air Act regulatory actions impacting the coal industry, among others. These went beyond the analyses EPA normally conducts in major rulemakings.

What's interesting is not that the agency appealed, but that the appeal was blessed and vigorously argued by the current administration. As DOJ's new leadership has commented, whatever the current policy views may be on jobs and coal, the case presented separation-of-powers issues regarding the authority of district courts to issue broad "programmatic" relief in the context of mandatory-duty citizen suits — an interest that cuts across administrations. Practitioners should keep in mind the role that such interests play in government's litigation decisions.

On a number of fronts (beyond just health care), Trump is faced with the quandary of whether merely to repeal an Obama-era regulation, or to repeal and replace it with a new regulation. For example, EPA plans to withdraw the Clean Power Plan "on grounds that it exceeds the statutory authority provided under Section 111 of the Clean Air Act." But it has yet to indicate what it believes the scope of its authority is. Will the agency endorse a position that precludes any regulation of carbon emissions from existing plants, or will EPA seek to replace the CPP with a scaled-down program?

Similarly, with respect to the Waters of the United States rule, in which EPA and the Army Corps defined the phrase for purposes of Clean Water Act jurisdiction, the agencies must decide whether to repeal, or to repeal and replace. They proposed to rescind the Obama-era rule and to replace it with the previous definition. That proposal would, ironically, send the program back to the status quo that had existed since the Supreme Court last addressed the issue in its fragmented 2006 opinion in Rapanos — a status quo that few were happy with. While the administration has pledged to issue its own new-and-improved definition in 2018, observers are anticipating a heavy lift.

The administration has made numerous regulatory commitments on some complex issues, many of which will come due around the same time. There will likely be pressure to finalize the biggest and most controversial rules well before the next presidential campaign is in full swing, and if possible, with enough time so that the regulations can be defended in court by this administration's legal team. Practitioners should anticipate the potential for a regulatory bottleneck in 2019 and early 2020.

Originally published by Environmental Law Institute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.