Trump and Environmental, Health and Safety Regulation

Welcome to part 2 of my 3 part blog series which discusses how the Trump administration might impact environmental, health and safety regulation. The first post talked about Trump’s appointees to run the Department of Labor, Andrew Pudzer, and the EPA, Scott Pruitt. Both appointees appear to be anti-regulation and will likely take steps to weaken both agencies. In this post, I’ll discuss the facts and political realities likely to confront the Trump administration and his appointees regarding potential efforts to roll-back current EHS regulations.

Let’s begin by summarizing Trump’s stated objectives & policies regarding regulatory reform. I’ve taken some time to review Trump’s website to see what it has to say about the subject:

Under the heading of “Making America Great Again,” his website has a sub-heading called “Getting America Back to Work Again.” Under this section, there are several sub-sections including one called “Regulatory Reform.”  A quick review of this section reveals the following summary policy points:

  • Temporary moratorium on ALL new regulations
  • Canceling of over-reaching executive orders
  • Review of all current regulations to eliminate unnecessary ones that kill jobs and bloat government

The section includes an interesting summary statement:

“While reasonable regulations are needed to address issues ranging from ensuring public safety to ensuring proper stewardship of our National Parks’ crown jewels, this can be accomplished without the profound damage to our economy and our freedoms that is currently inflicted by the regulatory bureaucracy.  The Trump administration is committed to regulatory reform that will produce sensible regulations that allow America to be great.”

The statement is broad and wide open to interpretation. For example, does “ensuring public safety” include the safety of private sector workers? Do Trump and his appointees believe that current EHS regulations that impact industry and small business are “reasonable,” (and should therefore remain in tact), or that they “kill jobs and bloat government” (and should therefore be rolled-back or eliminated)? Only time will tell…

Let’s take a quick look at the first 2 objectives, and a longer look at the 3rd:

Before doing so, it’s important to understand that Supreme Court precedent prevents new administrations from arbitrarily and unilaterally rescinding federal regulations. Any such changes must first undergo significant, time consuming review processes and almost always face major legal battles. I’ll discuss this point further towards the end of this blog post.

Temporary moratorium on ALL new Regulations:

This objective is relatively straight forward, although it’s unclear what “new” means. Does this apply to regulations that went into effect towards the end of the Obama administration, after the election date, or after Trump’s inauguration?

For example, OSHA just implemented 3 new major rules addressing Record Keeping and Reporting, Silica Exposure and Walking & Working Surfaces.   Apparently at least 2 of these new rules are recent enough to potentially get targeted by Trump administration for change or repeal. See http://www.natlawreview.com/article/world-according-to-trump-trump-s-potential-impact-osha

Regardless, once the new administration takes office, this is one area where they could definitely influence any recent regulations that have yet to go into effect or proposed new EHS regulations.

Cancelling Over Reaching Executive Orders:

I did some research and couldn’t find any relevant orders other than one for the EPA which ensures a smooth transition if senior leadership dies, or for some other reason can’t perform their duties. This order doesn’t appear to be over-reaching.

The most critical point is Trump’s promise to “Review of all current regulations to eliminate unnecessary ones that kill jobs and bloat government.”

This is a very broad agenda statement, but based upon campaign talk, and from a common sense perspective, is probably aimed at much larger regulations that have far reaching, major impacts on the economy and jobs.  Things like climate change, tax reform, Obama care, immigration reform, raising the minimum wage, etc.   Then again, there’s no guarantee that Trump, Pudzer and Pruitt won’t also target existing environmental, health and safety regulations.   The remainder of this article will focus on this issue and the probability of success if the administration pursues this course of action.

Again, Trump promised major regulatory reform during his presidential campaign, but campaign promises are one thing, and governance is often quite another….

As President Obama lamented in a recent interview recounting his discussions with Trump regarding the transition process, governance and the realities of Washington:  Obama stated that after taking office he soon realized that “The Federal government and our democracy is a not a speedboat, it is an ocean liner” and “This office has a way of waking you up.  (On Trump) Those aspects of his positions or predispositions that don’t match up with reality he will find shaken up pretty quickly, because reality has a way of asserting itself..”

Recall Obama’s campaign promises to create a long term-stable clean energy policy, immigration reform, an emissions cap & trade system to combat climate change, closing the Guantanamo bay prison, etc. For those who are unaware, none of these promises materialized during Obama’s presidency, and any hopes for significant EHS regulatory reform by the Trump administration could end up in the same heap.

What follows is a summary list of political, legal and other obstacles standing in the way of potential EHS regulatory reform efforts by the Trump administration.

Pick & Choose Your Battles:

As stated previously, Trump and his appointees are probably most concerned with attacking major regulations that create significant and undeniable burden and consequences for the economy and jobs.  Things like climate change, Obama care, immigration and increasing the minimum wage.  If Trump plans on attacking these issues, they’re going to be major fights requiring extensive time, resources and political capital. No easy task given today’s political climate, even with his congressional majority.  If they choose this path, there may not be much left in the tank for attacking EHS regulations. As any politician knows, success requires that you pick your battles and pick them carefully.

Most Existing EHS Regulations Are Long Established, Accepted & Proven Effective:

Current Federal and state EHS regulations that impact industry and small business are long standing and well established.  Many OSHA laws date back to the early 70’s and EPA’s to the early 80’s and before.  In other words, they’re long since “baked” into industry, largely accepted and proven to be effective.

Moreover, most of these laws are designed & intended to provide baseline preventative measures to protect the environment, local communities and worker safety, and don’t create excessive burdens for business. Removing these “common sense” based regulations could put workers and the environment at unnecessary and serious risk.

As a powerful example of the effectiveness of these laws, OSHA reported in October of this year that national injury and illness rates have dropped every year for the past 13 years, with the exception of 2012, with a significant drop from 2014 to 2015.  As part of the press release, Dr. David Michaels, the current head of OSHA stated:  “We are encouraged to see the significant decline in worker injury and illness rates. This is the result of the relentless efforts of employers, unions, worker advocates, occupational safety and health professionals, and federal and state government agencies ensuring that worker safety and health remains a top priority every day.”

Do Trump and Pudzer really want to risk reversing this trend? What good could come of this?

Add it all up, and it’s easy to see how starting a campaign to repeal or change these laws could appear to be reckless at best, and dangerous & irresponsible and potentially even criminal at worst.

Department Heads Come & Go, But Career Agency Public Servants Do Not:

How cooperative do you think the “rank and file” agency bureaucracy would be towards unreasonable change?  Department heads come and go, but agency staff often remain throughout multiple administrations over time, and that’s because most public servants strongly believe in their agency missions and support the laws they administer and enforce. Of course, staff members must follow management direction and do as they’re told, but there’s no guarantee that they’ll do so enthusiastically or effectively.  Any efforts to undermine agency mission would also likely result in serious damage to morale. Sure, Pudzer and Pruitt can install new management and shuffle staff, and probably will, but they can’t fire and replace the entire staff, and those who remain probably won’t make change easy. Add it all up, and it’s easy to imagine how civil servants could seriously undermine any administration efforts towars change.

Recent History Proves That Lax EHS Regulation Can Lead To Disaster:

Recall the recent EHS related disasters at Flint (lead in public water), Deep Water Horizon (largest oil spill in American history), and West, TX (fertilizer plant explosion).   Each of these events were later tied to regulatory failures; either lack of regulation or failure to follow or enforce existing regulations.

Would it be wise to roll back EHS regulations that could have prevented these disasters, and thus potentially result in similar catastrophes in the future? 

Federal vs. State regulation:

As many of you know, some states answer to Federal OSHA while others have independent state programs that must meet or exceed Federal OSHA.  Similarly, EPA dictates federal environmental laws, while each state has their own environmental agencies who must meet or exceed those federal standards. Sure, Puzder and Pruitt could initiate Federal level changes, but would the state programs necessarily follow those changes?  Maybe, but probably not (for many of the same reasons outlined above).

On a related note, Pruitt is on record in support of state level governance and regulation, so he’d be hard pressed to try to make Federal level EPA changes and expect for states to follow suit.

Administrations Can’t Unilaterally Rescind Regulations

Despite Trump’s campaign promises to rescind regulations that “kill jobs and bloat government,” Supreme Court precedent shows that new administrations can’t unilaterally rescind federal regulations without due process.

In summary, all proposed regulations must go through an extensive rule making process which includes public notice, comment and sound rationale explaining why the regulation is needed. This is a very time consuming, resource intensive and expensive process that every regulation must “pass” prior to becoming law. What Trump might not understand is that the same rule making process applies in order for regulations to be rescinded. The key point being that there must be a strong, rational argument for making the change. The Supreme Court has prevented past efforts to de-regulate by ruling that rationale was “arbitrary and capricious.”

In addition, any efforts to rescind vital EHS regulations would likely be met with stiff and determined legal resistance from various stake holders including the public, unions and sometimes even industry. These legal battles are historically common in this context, and could be drawn out for years.

Add it all up, and existing EHS laws, both Federal and state, are likely “safe” from significant change or elimination by the new administration, despite Trump’s promises.

So where does this leave the overall EHS regulatory reform potential?  The issue really comes down to 2 things: 1) Enforcement and 2) Limiting expansion of existing or new regulations.  These are the 2 areas susceptible to change and influence by the new administration, and Pudzer and Pruitt will likely act on both.

Let’s take a quick look at each:

Enforcement of Current EHS Laws:

As it is, OSHA, EPA and state environmental agencies enforcement departments are vastly under staffed and resourced to adequately inspect the hundreds of thousands of US companies impacted by EHS regulation, and undertake enforcement actions when necessary.  That’s always been the status quo situation regardless of administration, and will probably never change. So in reality, regardless of what the Trump administration does, the overall risk of enforcement action for any given company isn’t going to change much.

Despite this fact, it’s not hard to imagine both appointees cutting enforcement budgets and installing management who are “anti-enforcement” minded.  This would certainly reduce the # of enforcement inspections and fines, but again enforcement action risk is already small and probably wouldn’t change significantly due to budget cuts. It’ll be interesting to see how far they go, especially given Trump’s quotes in support of “reasonable” regulation, and pledges to protect workers and the environment (see above and my first blog post).

Again, the distinction between Federal and State regulation comes into play: Non Federal OSHA states who have their own health and safety programs wouldn’t necessarily follow Federal enforcement budget cuts, and the same goes for environmental enforcement where ALL states have their own environmental regulatory agencies.

Limiting Expansion of Existing or New Regulations

Again, this is fairly straight forward. Both Pudzer and Pruitt are likely to restrict or deny any new EHS regulations, or expansion of existing regulations at the Federal level. They’ll probably have the power to do this, and absent any major disasters or events that might suggest the need for new regulation (ie: another major oil spill, contamination or high casualty industrial event), will probably maintain that course.

In summary, Mr. Trump has made some big regulatory reform promises that he may or may not be able to keep. Any major actions and successes for his administration will likely involve the “big,” high visibility regulations that have undeniable consequences for the economy and jobs, such as the Affordable Health Care Act, climate change, immigration, financial and tax reform. These are the major regulatory targets and will consume untold time, resources and political capital from the administration, likely leaving little in reserve for additional fights.

And as argued throughout this blog post, the current set of EHS regulations that impact industry and small business are long standing, accepted, proven effective and designed to provide baseline preventative protection for workers, local communities and the environment. They’re not overly burdensome for business, nor do they “kill jobs or bloat government.”

Note: Senate confirmation hearings for Pruitt and Pudzer are scheduled for this week.  Check back for an update and to hear what the appointees had to say about these issues…..