The Trump administration has taken great pride in dismantling regulations issued during the Obama years, particularly rules designed to protect the environment or consumers. Federal agencies have spent the past two-plus years targeting rules designed to make chemical plants safer, conserve natural gas at oil and mining facilities and improve compliance with fuel economy standards, among many others. But that process has been falling apart in court. By the most recent count, the administration has either lost or given up in 34 out of 36 deregulatory cases, a win rate of just over 5 percent.

Despite that low success rate, the administration is actually winning — at least some of the time. That’s because the administration has learned to use delaying tactics to undermine and even repeal federal regulations it doesn’t like, even when judges rule against it in court.

In effect, the administration has adopted a winning deregulatory strategy that can be summed up as: If you can’t beat them, stall them.

This delay game has played out a number of different ways. One of the administration’s favored methods is something of a bureaucratic whack-a-mole. Under this approach, an agency delays the implementation of an Obama-era regulation and when sued, quickly withdraws the first delay and issues a new one or a full repeal of the rule to avoid losing the court battle over the first delay. Agencies have used this approach to keep several rules from coming into effect, including an Environmental Protection Agency rule meant to limit toxic metal water pollution from power plants. The agency originally delayed that regulation using methods that have been overturned in many other cases. But by quickly replacing the first delay with a second and different delay, the agency has stretched out the litigation process for two years, during which time the rule has remained unimplemented.

The use of this strategy has created moving targets for opponents and made it harder for public interest groups to challenge the delays. And it has succeeded even when the delays look just like other delays that have failed in court. For example, even though agencies have lost cases for ignoring public comment requirements, opponents haven’t challenged Trump administration delays with the same problem. Litigation can be expensive and time-consuming, and the nonprofit advocacy groups challenging these deregulatory actions depend on fundraising and membership fees to support their work. Spending those resources on litigation to challenge a delay that could be quickly withdrawn can be hard to justify to donors and supporters who tend to focus on the underlying regulation, not the stalling tactics. As a result, delays have often escaped challenge, even when they bear the hallmarks of illegality.

THOUGH MANY DELAYS have been found to be illegal, the administration has still cited them to trumpet their deregulatory record. For example, after a court ruled against the Department of Education on the delay of a rule meant to protect student borrowers, the administration still used the delay to claim deregulatory success. In reality, the delay put off the protections to borrowers only for a short time.

Delays that are later vacated can also be problematic. When EPA delayed its chemical plant safety rule, plants that were supposed to have coordinated emergency response plans with local first responders in March 2018 did not do so. Those companies are now facing pressure from state regulators to make sure they come into compliance under tighter time pressure than they would have felt had the rule stayed in effect. At the same time, compliance with these rules is crucial as explosions continue to happen.

However counterintuitive, the administration has even been able to use delays and court losses to get regulations off the books. In 2017, the Bureau of Land Management delayed a rule restricting waste at oil and gas facilities twice and lost in court both times. After those losses, the government asked a Wyoming judge to suspend the rule. That judge had previously rejected industry’s request to block the rule, but after the two losses, the judge reversed course and agreed to suspend the rule, citing the “ping-ponging regulatory regime” and a need to provide “certainty and stability” for the oil and gas companies.

In short, the administration is delaying rules because doing so eases the path to repealing them. Take the regulation limiting toxic metal discharges into the water, for example. If power plants had installed the required technology, a repeal would look unjustified because it wouldn’t save money and would mean more toxic metals in the water. But with the delay in place, the administration can argue that a repeal would only extend the status quo.

Despite losing in court, agencies are using delays to get their way anyway. Environmental and consumer advocates and other plaintiffs need to take these delays more seriously and make sure that judges are aware of the long-term harm they cause. According to the law, an agency that plans to change a regulation is supposed to take several steps, and for good reason: Research has shown that this lends itself to regulatory certainty and innovation much more than a process where agencies can take rules out of effect on a sudden whim. And surveys show that businesses crave the predictability inherent in that process.

The Trump administration’s delaying tactics are deceptive and damaging. Plaintiffs and judges need to start seeing them for what they are: A roundabout way to evade the regulatory process and disregard the rule of law.

Bethany Davis Noll is litigation director of the Institute for Policy Integrity at New York University School of Law and a former assistant solicitor general at the New York State Attorney General’s Office.



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