The Trump Administration and Waters of the U.S.

President Donald Trump recently signed an executive order aimed at rolling back the Waters of the U.S. (WOTUS) rule, an Obama-era rule designed to protect the streams and wetlands that form the foundation of the nation’s water resources. What will happen to current WOTUS litigation following the president’s recent executive order?

(Getty Images)

Per the Clean Water Act, “Waters of the United States” (WOTUS) are parcels of land, such as the wetlands pictured above, which are federally regulated by the EPA and the Army Corps of Engineers. (Getty Images)

President Donald Trump’s executive order Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule calls for the “rescinding or revising” of the Waters of the United States (WOTUS) definitional rule published in the summer of 2015. Many state and local governments objected to the broad nature of these regulations, in particular to the expansive definition of ditches and the ambiguous definition of tributaries.

“The EPA so-called Waters of the United States rule is one of the worst examples of federal regulation, and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land,” said President Trump on Tuesday.

The executive order acknowledges that rewriting the WOTUS definitional regulations will require going through the lengthy and complicated process under the Administrative Procedures Act which the 2015 final regulations endured. This process involves proposing a new rule, receiving and responding to (likely thousands) of comments, and issuing a final rule.

The current WOTUS regulations are subject to complicated litigation. In October 2015, the Sixth Circuit issued a temporary stay of the regulations preventing them from going into effect nationally. In February 2016, the Sixth Circuit ruled that it, rather than a federal district court, has jurisdiction to rule on whether the WOTUS rule exceeded the Clean Water Act.

In January 2017 the Supreme Court agreed to review the Sixth Circuit ruling that an appellate court – not a district court – has jurisdiction to rule on WOTUS. This case, National Association of Manufacturers v. Department of Defense, will not be heard until late 2017, meaning the Supreme Court may not issue an opinion in this case until as late as June 2018.

What will be the fate of all this WOTUS litigation over the current rule in light of the executive order? We don’t know – but the executive order directs the Attorney General to “inform any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.”

The Attorney General may ask the Sixth Circuit to voluntarily vacate its decision temporarily staying the regulations, given that the new administration intends to change them. The Sixth Circuit is more likely to agree to this if none of the parties object. A number of states and environmental groups have intervened in support of the current WOTUS regulations and may object.

If the Sixth Circuit vacates the stay, the practical effect is that the current regulations would no longer be valid. Vacatur of the Sixth Circuit stay also would likely render moot the Supreme Court challenge on jurisdiction. If the Sixth Circuit refuses (or isn’t asked) to vacate the Sixth Circuit decision regarding the stay, the Supreme Court jurisdiction litigation is likely to proceed indefinitely.

Given that defining WOTUS has been so difficult and contentious, almost no matter what new definition is proposed it too will be subject to litigation.

The executive order instructs that Justice Antonin Scalia’s decision in Rapanos v. United States be “considered” in defining the term “navigable waters.” Rapanos is a 4-1-4 decision. Justice Scalia wrote the plurality opinion, defining this term more narrowly than Justice Kennedy’s solo concurring opinion. The Sixth Circuit considered Justice Anthony Kennedy’s opinion controlling. If the new definition of WOTUS relies on Justice Scalia’s opinion, it will almost certainly be challenged on this ground, along with many others.

Interested in more WOTUS news? Lisa Soronen contributed a previous CitiesSpeak blog post about the jurisdictional determinations issued by the Army Corps of Engineers under the Clean Water Act.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

Meet Your City Energy and Environment Advocate

“[An overhaul of the EPA] is not something that can nor will happen overnight, but I think we know that it is something the new administration is interested in.” 

Every week leading up to the 2017 Congressional City Conference we’ll feature a “Meet Your City Advocate” spotlight as part of a series introducing you to NLC’s Federal Advocacy team. This week, I sat down with Carolyn Berndt, our program director for sustainability advocacy.

carolynberndt

Carolyn Berndt is the program director for sustainability advocacy at the National League of Cities. (Brian Egan/NLC)

Name: Carolyn Berndt
Area of expertise: Environment and Sustainability
Hometown: Winchester, Mass.

Carolyn, thanks for sitting down with me today. To kick it off, why don’t you tell us a little bit about your background. Where are you from, where have you been, what have you done? 

Well, I’m from Winchester, Massachusetts, not too far from Boston.

Oh, I guess the Super Bowl went the way you had hoped.

I was wondering how long it would take me to slip a ‘Go Pats!’ into this interview. But, yes – I’m from a suburb just north of Boston, but moved down to D.C. right after college. I didn’t have a job at that point, but I knew I wanted to be in Washington. I’ve had three jobs in government relations, but I never had a personal connection to the first two. I started working with a nuclear engineering company. Fascinating topics and interesting, but not the most engaging job if you’re not devoted to all things nuclear. My second job was with the American Society of Interior Designers doing state advocacy and grassroots, and again, I just wasn’t an interior designer. Both jobs had me working in government relations and I gained an interest in public policy, so I decided to pursue a Master’s in Public Administration from American University.

Go AU.

That was when I really started to think about cities and local government. Chris Hoene, who used to be NLC’s director of research, did a guest lecture for one of my classes at American.

So Chris Hoene was like the former Brooks Rainwater [NLC’s current director of research]?

Yes, sort of. I remember sitting in class and thinking I should check out the National League of Cities. Eighteen months later I landed a job with NLC! What makes my time at NLC different from my previous jobs is that I’m passionate about my city and the neighborhood where I live. It upsets me when people rag on Washington. I understand frustrations with policy and politicians, but D.C. is my home – and it’s actually a very nice place with great people and a great community to live, work and play. I have a profound respect for local leaders and the communities they help shape every day. Everyone deserves to be proud of their city — and everyone deserves a clean and safe environment.

Well, that segues nicely into my next question: Why sustainability policy? 

I more or less fell into it. I have always been passionate about the subject, having spent a lot of time outdoors as a kid – the beach, the mountains, our national parks – and I took several environmental policy classes in undergrad and grad school. And now, as a parent, there is the basic desire to leave my children with a clean and sustainable future.

I always see cities as being ‘pragmatic environmentalists.’ We all want and need clean air and water, but from the local government perspective there are costs. I’m seeing some cities advance sustainability policies for environmental reasons, but many do it because it just makes economic sense for them. They find in the long run it’s ultimately cheaper to invest in sustainable practices now, particularly with disaster preparedness, rather than ignore it and face the higher costs later.

Interesting. So what do you think 2017 has in store for city sustainability policy?

We hope to have conversations with the new administration and Congress on where they see energy and environmental policy going. Some of the messaging has been around an “all of the above” energy strategy. On the issue of climate change, NLC and cities have been supportive of policies that reduce greenhouse gas emissions, like energy efficiency and renewable energy programs. I hope that climate adaptation and disaster preparedness stay priorities for the federal government. I think it’s hard to argue against being prepared for natural disasters, and cities are the first responders.

The administration has made it clear they want to overhaul the EPA, everything from programs and policies to regulations. This could have a big impact on local governments. While cities certainly have some concerns about various agency rulemakings, there are many programs at EPA that work very well for cities, such as the Brownfields program. And of course programs like the Clean Water and Drinking Water State Revolving Loan Funds and WIFIA are important for funding water infrastructure development.

Do you see cities picking up the gauntlet in the absence of federal leadership on sustainability?

I think cities have already been leading. When I came to NLC, “sustainability” was a relatively new thing and NLC had just adopted a comprehensive sustainability resolution. But since that time, more and more cities have been leading many of the commonsense and innovative environmental policies spreading across the country. Cities will continue to lead in this space, and they’ll continue to look for a federal partner.

I feel like I might already know your answer to the next question, but what is your spirit city?

Well… I’ll always be a New Englander at heart, but I’m afraid I have to steal Matt’s answer here and say San Diego. I love being outside and I love the beach. The idea of having 75-degree perfect weather year round sounds wonderful!

Join us at the 2017 Congressional City Conference and meet Carolyn and the rest of your City Advocates.

brian-headshotAbout the author: Brian Egan is the Public Affairs Associate for NLC. Follow him on Twitter @BeegleME

Mayors Continue to Forge a Path Towards Greater Urban Resilience

Cities across the country are thinking of new ways to use resources and community assets to strengthen their response to numerous challenges presented by the on-going impacts of climate change and sea-level rise.

Last week, Shafaq Choudry was in West Palm Beach, Fl. representing the National League of Cities at Mayor Jeri Muoio’s State of the City Address where more than 800 community and business leaders gathered to hear city achievements in sustainability and a pathway forward on climate resilience. West Palm Beach is one of the ten cities participating in NLC’s Leadership in Community Resilience program, which launched in 2016. (Getty Images)

Last week, Shafaq Choudry was in West Palm Beach, Florida, representing NLC at Mayor Jeri Muoio’s State of the City Address, where more than 800 community and business leaders gathered to hear city achievements in sustainability and a pathway forward on climate resilience. West Palm Beach is one of the ten cities participating in NLC’s Leadership in Community Resilience program, which launched in 2016. (Getty Images)

2017 will be a year where local government leads the charge on urban resilience – and National League of Cities will be there to help. Through our Leadership in Community Resilience program, NLC provides assistance to 10 cities across the country that lack the financial and institutional resources, city-wide and cross-departmental collaboration, and internal capacity to implement their resilience goals. Designed to bolster city-led resilience initiatives and disaster preparedness, the program elevates local governments’ commitment towards a resilient urban future, no matter what is happening at the federal level.

These efforts were on full display in West Palm Beach last week at Mayor Jeri Muoio’s State of the City Address. Mayor Muoio focused on last year’s success as well as future plans to a vibrant crowd of 800 business and community leaders, elected officials, and residents. She highlighted how the city’s commitment to resilience and sustainability was rewarded with a 4-STAR rating – the only city to receive this certification in Florida. The city’s focus on reducing greenhouse gas emissions, equitable development, data collection, mobility, and increasing economic opportunities has successfully attracted partnerships with the National League of Cities, Knight Foundation, Bloomberg Philanthropies What Works Cities, Van Allen Institute and Gehl Design Studios.

Mayor Muoio’s sentiments are reflected in cities throughout the country where city officials are working to protect their communities from the recurring impact of climate change on infrastructure, housing, and businesses. The devastating impact of floods, hurricanes, droughts and other extreme weather consistently top news headlines and unlike national politics, weather holds no party affiliation. Building upward from a foundation set over the past eight years, city leaders are pushing disaster resilience initiatives into implementation.

Under former President Obama’s administration, the federal government restored the public’s good faith in disaster response from 33 percent after Hurricane Katrina to 75 percent after Sandy, according to Gallup. Over the course of eight years, Federal Emergency Management Agency (FEMA) Administrator Craig Fugate dealt with 910 disaster declarations, more than any FEMA director in history. FEMA released an action plan in 2013, Crisis Response and Disaster Resilience 2030: Forging Strategic Action in an Age of Uncertainty, to address the gaps in emergency management and opportunities for capacity building. Hurricane Sandy triggered the federal government to shift their approach to disasters from a band-aid response to a holistic resilience planning.

Within three short years, shifts in disaster management and response from a federal to local level has empowered cities to think holistically and act strategically about urban resilience through programs such as the Rockefeller Foundation’s 100 Resilient Cities (100RC) and Rebuild by Design. Formerly a partnership with the U.S. Department of Housing and Urban Development, Rockefeller Foundation partnered with the San Francisco Planning Department in light of a new Trump era, to launch Resilient by Design. Rockefeller Foundation awarded $4.6 million to the Bay Area to combat climate change and sea-level rise with a focus on providing multiple benefits to vulnerable populations.

Many cities outside the 100RC, Rebuild by Design, and Resilient by Design network are thinking of new and creative ways to use resources and community assets to strengthen their response to economic, environmental and social challenges presented by the on-going impacts of climate change and sea-level rise.

Although the cost of climate change is evident in global and financial centers worldwide, NLC has seized the opportunity to capture a compelling story of urban resilience efforts in small to mid-sized cities across the country through the Leadership in Community Resilience program. We are proud to support efforts like Mayor Muoio’s pledge to reduce greenhouse gas emissions by 2050 and look forward to working with West Palm Beach and the other nine cities in our program throughout the year.

shafaq_choudry_125x150About the author: Shafaq Choudry is a Senior Associate with the Sustainable Cities Institute at the National League of Cities.

Seven Cities Activate Strategies to Connect Kids to Nature

“Imagine a city known for excellent environmental education because its parks are natural classroom. As a city, we are creating greater access to nature for all of our younger residents.” -Grand Rapids, Michigan, Mayor Rosalynn Bliss

City leaders address disparities in children’s opportunities to play, grow, and learn in the outdoors through Cities Connecting Children to Nature (CCCN), a partnership between NLC and Children & Nature Network.

In November, seven Cities Connecting Children to Nature (CCCN) sites began implementing strategies for connecting children to nature more equitably in their cities. Mayors like Rosalynn Bliss of Grand Rapids, Michigan, seek to restore childhood to the outdoors and commissioned eight months of community dialogue, policy scans, nature-mapping, and network building to inform strategies for action, such as:

  • Developing green schoolyards and enhancing access to nature at public elementary schools and early childcare facilities
  • Connecting to nature through out-of-school time programming
  • Cultivating youth leadership and stewardship
  • Bringing more diverse groups of residents in regular contact with natural features in city park systems

The chart below indicates priority strategies among the pilot cities: Saint Paul, Minnesota; Madison, Wisconsin; Grand Rapids; Providence, Rhode Island; Louisville, Kentucky; Austin, Texas; and San Francisco.

(NLC)

(NLC)

Over the next three years, each of these cities will execute its priority strategies with peer exchange, learning and technical assistance from the CCCN partners and $50,000 grants to kick start city efforts for at least the next nine months. Prominent strategies rely on involvement of key partners such as parks and recreation agencies, school districts, out-of-school time networks, conservation and youth development organizations, and elected and community leaders, as well as adult and youth residents. A metrics framework drawing upon cities’ initial assessment practices and indicators will inform a broader field of cities and partners seeking to measure both systems-level change and direct impact on children. CCCN partners will offer additional resources for municipal action in the coming months, including in-person opportunities detailed below.

Join Us to Learn More

Representatives of the seven-city cohort will share its implementation and planning experience at the 2017 International Conference and Summit of the Children & Nature Network (C&NN), April 18-21 in Vancouver, British Columbia. C&NN extends an open invitation to a wide variety of additional participants to attend the Conference and Summit including other city leaders, planners, public health advocates, field practitioners and thought leaders committed to advancing policies, partnerships and programming for connecting children to nature.

Additionally, city parks professionals can learn more from Austin and the other CCCN cities at a May 17-19 National Recreation and Park Association (NRPA) Connecting Kids to Nature Innovation Lab.

The CCCN webinar series begins with “Emerging City Strategies to Connect Children to Nature” on Thursday, February 23, from 2:00-3:00 p.m. EST. Register here to learn more about the priority strategies adopted by CCCN pilot sites.

Cities Connecting Children to Nature is a partnership between NLC and Children & Nature Network. Connect with CCCN through upcoming conferences, webinars, and our newsletter.

priya_cook_125x150About the author: Priya Cook is the Principal Associate for the Connecting Children to Nature program, the newest program of NLC’s Institute for Youth, Education, and Families.

Urban Parks Transcend National Politics

The benefits of public green spaces within, or accessible to, urban areas are much greater than are often immediately understood. Here’s how cities stand to gain from increasing access to parks.

The High Line is a public park built on an historic freight rail line elevated above the streets on Manhattan’s West Side. (Getty Images)

The High Line is a public park built on an historic freight rail line elevated above the streets on Manhattan’s West Side. (ferrantraite/Getty Images)

This is a guest post by Jaime B. Matyas.

As the nation seeks to unite after a contentious presidential election, areas of shared commitment should be prized and pursued. One of those areas is the increasingly important role of public lands in or near urban areas. President Donald Trump previously donated land in the New York City metropolitan area for a state park, and Hillary Clinton had called for the revitalization of more than 3,000 city parks within 10 years. Their actions highlight the value of public land and its growing importance in proximity to urban areas, and they could form the foundation for productive community engagement.

The benefits of public green spaces within, or accessible to, urban areas are much greater than are often immediately understood. They include, of course, the spiritual renewal that comes from experiencing the beauty of natural habitats, the joy of recreation, and the opportunity for relief from the daily stresses of life – but other benefits are even more profound.

Public parks have an extraordinary capacity to reveal individual passions for discovery and open up career opportunities. Monique Dailey, Youth Programs Manager for the Washington, D.C. Area at the Student Conservation Association (SCA), was 10 years old before she saw her first “real park” and says that she didn’t realize at the time that “it would be my salvation from the drugs and violence that were ravaging my community.” She became a Junior Ranger in the National Park Service, then a volunteer at the Rock Creek Park Nature Center, and finally an SCA crew member in Rock Creek Park before volunteering on a national crew at Salmon Challis National Forest in Idaho and interning for a summer. When it came time to apply for college, she had 750 volunteer service hours with SCA and a glowing recommendation to the Admissions Director.

AmaRece Davis had a similar experience in Homewood, one of Pittsburgh’s poorest neighborhoods. When two of his older brothers went to prison for murder, he saw himself “heading down that same dark path.” Then he got a break. He started working with the SCA, building trails, clearing brush and planting trees around Pittsburgh. That enabled him to join an SCA crew at Sequoia National Park in California, surrounded by giant sequoia trees.

“I sat at the base of one of these giants on my 18th birthday,” he writes, “and thought about all of my friends and relatives who had never been out of Pittsburgh and of others who hadn’t even survived to be 18. I came home a different person. I had found something larger than myself, figuratively and literally. I never used to care about litter, for example, and based on all the trash on the streets where I lived, neither did anyone else. When I got back from the West, I immediately organized a recycling program at Westinghouse High School and became known as Recycling Rece.” He has gone on to attend community college and complete several SCA internships, and recently became a Pittsburgh city park ranger.

The conservation of parks also provides skills that can enhance job and career opportunities. Research conducted by the renowned Search Institute revealed that SCA participants develop such valuable traits as “expressing ideas, engaging others to reach a goal, responsibility for the greater good, sense of purpose, openness to challenge, perseverance, awareness of their strengths and weaknesses, and more.” These skills all enhance one’s ability to succeed in life and in careers. That’s why it’s so important that urban residents as well as rural ones reap the benefits of America’s public lands.

At present, visitors to our national parks are, in the words of former Interior Secretary Sally Jewell, “older and whiter.” And a 2015 report by the Outdoor Foundation revealed that 73 percent of outdoor participants generally are Caucasian. But public parks can benefit all Americans – and a broadly diverse population can relate effectively to parks, which leads to more public support. Some methods that are valuable in broadening outreach in urban areas include the following:

  • Overnight Camp-Outs, which have been conducted by The White House and many governors in association with Great Outdoors Month with much success
  • Day Camps, which can provide single-day or week-long environmental education programs that introduce youth to nature-in-the-neighborhood as well as ways to be more ecologically friendly
  • Afterschool Programs, which can provide environmental education for younger children while engaging older youth in assisting with the program and with park restoration

When public parks and their conservation contribute so much to people and their communities, they are worthy of broader engagement and support – especially when so many young people need the work experience and career-enhancing opportunities that the conservation of parks can provide. In September, the unemployment rate for teenage youth (16 to 19 years old) was 15.8 percent, according to the Bureau of Labor Statistics. At the same time, our national parks alone have a maintenance backlog of nearly $12 Billion.

Enhancing our nation’s parks and ensuring that their upkeep benefits everyone can become a point of community and national unification.

jaime_matyas_125x150About the author: Jaime B. Matyas is the president and CEO of the Student Conservation Association, the national leader in youth service and stewardship.

Five Ways Your City Can Benefit from the “Solar in Your Community” Challenge

Offering $5 million in cash prizes and technical assistance over 18 months, the Challenge supports local teams across the country in their efforts to develop programs or projects that bring solar to their communities.

There are 19 megawatts of solar installed in the city of Portland. Pictured is the Oregon Convention Center. (Jeremy Jeziorski)

This is a guest post by Odette Mucha.

In 2016, solar energy was the largest source of new generating capacity in the United States. With more than one million solar projects now operating across the country, the U.S. has over 35 gigawatts of total solar installed capacity – enough to power the equivalent of 6.5 million average American homes. This is an industry that is growing fast.

Despite this rapid growth, however, solar energy remains inaccessible to nearly half of American households and businesses, as well as many local governments and nonprofits. There are several reasons for this:

  • Nearly half of all rooftops cannot host solar due to insufficient roof space, lack of control over the roof (renters, condos), or shading.
  • While the federal Investment Tax Credit has grown the solar market, it excludes individuals and organizations with no federal tax liability, such as cities, nonprofits, low income individuals, and retirees
  • Low income populations face even greater challenges, often due to poor roof conditions, lower than average credit scores, and lack of access to affordable financing.

And yet, these communities stand to benefit the most from going solar – from stabilizing their energy costs to reducing air pollution. Cities go solar through the Solar in Your Community Challenge, a program launched by U.S. Department of Energy’s SunShot Initiative to expand solar access to those who have, to date, been left out of the growing solar market.

The Solar in Your Community Challenge encourages the development of innovative financial and business models that serve low and moderate-income communities, local governments, and/or non-profits. Offering $5 million in cash prizes and technical assistance over 18 months, the Challenge supports local teams across the country in their efforts to develop programs or projects that bring solar to these segments of their communities, while proving that these business models can be widely replicated and scaled up.

Why should cities participate in the Solar in Your Community Challenge?

  1. Save Money on Municipal Electricity Bills

Local governments, which own approximately 10 percent of commercial buildings (schools, office buildings, public assembly buildings, etc.), spend approximately $14.7 billion on electricity – 12 percent of total commercial building expenditures (EIA data). Solar energy can cut cities’ monthly electricity bills and make funds available for other priorities.

  1. Create Local Jobs

The solar industry is a proven driver of job growth. As deployment has soared, so have solar jobs – there are nearly 209,000 solar workers in the U.S. today, with more than half of them in installation jobs that can’t be outsourced. Further, these workers are paid competitive wages, with installers making a median wage of $21 per hour.

  1. Help Low Income Residents

Low income households pay a large portion of their income towards electricity bills. An analysis by Groundswell found that the lowest income households spent nearly 10 percent of their income, over four times more than the average consumer. Access to low cost solar can provide price stability and bill relief to low and moderate income households.

  1. Improve Resiliency

Cities around the country are facing increased threats from natural disasters and are taking steps to plan for them. During extreme weather events, solar energy can help prevent outages, provide energy for critical facilities, and aid in recovery efforts. Solar can also provide energy to remote areas.

  1. Meet Environmental Goals

Using solar power instead of conventional forms of energy reduces the amount of carbon dioxide, nitrous oxide, and other pollutants that are emitted into the environment. Reducing the amount of pollution translates into cleaner air, reduced water consumption, and improved health.

Cities can participate in the challenge in two ways – as part of a program team or a project team.

Program teams create new programs that enable the installation of solar for use by low income households, governmental organizations and/or nonprofits. Program Teams will be led by governments, utilities or financial institutions.

Project teams develop and install a new solar system or a portfolio of systems that benefit low income households, governmental organizations and/or nonprofits using innovative and scalable business practices. Project Teams can be led by anyone, but should include a combination of key organizations like cities, solar developers, utilities, financial institutions and community organizations.

The application deadline to participate in the Challenge is March 17, 2017. Click here to learn more about the Solar in Your Community Challenge and apply today!

odette_mucha_125x150About the author: Odette Mucha is a Technology Manager at the U.S. Department of Energy SunShot Initiative. She is the manager of the Solar in Your Community Challenge.

Trump May Not Be Able to Remove Federal Regulations Himself – But Someone Else Could

Three federal regulations of particular interest to cities might be on the chopping block following the inauguration, but the incoming administration would face difficulties removing them on its own.

A conservative Supreme Court could be the key to removing federal regulations under a Trump presidency. (Getty Images)

A conservative Supreme Court could be the key to removing federal regulations under a Trump presidency. (Getty Images)

President-elect Donald Trump has repeatedly stated that one of the goals of his new administration is to get rid of federal regulations. Three on the chopping block of particular interest to state and local government include:

  • the Clean Power Plan (CPP), President Barack Obama’s signature climate change measure
  • the regulations defining “Waters of the United States” (WOTUS), a significant term in the Clean Water Act defining the federal government’s jurisdiction to regulate water
  • the Fair Labor Standards Act (FLSA) overtime regulations, which extend overtime pay to four million workers

Despite the fact that the new administration has a menu of options when it comes to removing final federal regulations, the most effective options are probably the most difficult for the president to achieve. If any or all of these regulations go, it won’t likely be the result of the direct efforts of the new president – the U.S. Supreme Court would likely be responsible.

What Are Trump’s Options?

Perhaps the cleanest way to undo final regulations is to rewrite or eliminate the statutory language being interpreted in the regulation. For example, the WOTUS final rule includes eight categories of jurisdictional waters. Congress could simply rewrite the Clean Water Act to define WOTUS differently from the final regulations. But getting such a change through Congress would probably be impossible as Senate Democrats would certainly filibuster any change they saw as offering less environmental protection than the final regulations.

The Trump Administration could also instruct federal agencies to rewrite regulations, but a number of challenges arise with this option. First, the agency would have to come up with new proposed regulations – and depending on the regulation, this might take a lot of time. Take the Clean Power Plan regulations, for example; they are more than 300 pages long. In addition, once new regulations are proposed, they are subject to a public comment period of either 60 or 120 days. The agency must then consider hundreds or thousands of comments before issuing final rules. Finally, when this process is complete, the new regulations would almost certainly be subject to a court challenge. Changes to agency rules must be non-arbitrary, and supporters of any of the three regulations discussed in this post would likely be willing to sue.

Another option when it comes to dealing with disfavored regulations is to simply fail to enforce them by giving agencies inadequate funding to engage in rigorous enforcement or instructing agencies to make enforcement of particular regulations a low priority. This strategy would be more effective for some regulations than others. For example, if President-elect Trump instructed the Department of Labor to ignore employees being classified as “white collar” when they should not be per the FLSA, employees could pursue lawsuits against their employers for this violation without Department of Labor involvement.

Agencies also have the option of issuing interpretations of regulations that can take those regulations in a different direction than originally intended. This strategy would not work well for dismantling seismic regulations like the Clean Power Plan or very simple, straightforward regulations like the FLSA overtime rules. Also, these interpretations can be subject to court challenge as arbitrary and can be overturned with the stroke of a pen by the next administration.

The CPP, the WOTUS regulations, and the FLSA regulations are all currently being challenged in court on various grounds. The Trump administration can also refuse to defend these laws. But the lawsuits are unlikely to simply go away because interveners would probably step in to defend them. For example, states and local governments have already intervened to defend the Clean Power Plan, and the Texas AFL-CIO has sought to intervene to defend the FLSA overtime regulations.

Enter Justice Kennedy

Before President-elect Trump was elected, all three of the cases described above were likely headed to the Supreme Court. Despite his hostility towards them (and maybe even because of it), these regulations will probably still end up before the Supreme Court.

It is perhaps unfair to speculate how a Supreme Court Justice might look at these regulations (which are all being challenged on different legal grounds) based solely on whether that Justice is a conservative or a liberal. Nevertheless, these labels indicate general legal philosophies and leanings.

Conservative Justices – for a variety of reasons which may differ depending on the regulation – might generally be more likely to view these (and other regulations) with more hostility than liberal Justices. A conservative Justice is more likely to see any or all of these regulations as an attack on federalism or as an example of federal agency overreach. Regarding the CPP or the WOTUS rule in particular, a conservative Justice may see these measures as part of a pro-environment policy agenda rather than as a manifestation of clear law.

While we don’t know who President Trump will nominate to fill Justice Antonin Scalia’s vacancy, all signs point toward President Trump nominating (and the Senate ultimately confirming) a reliable conservative. But this nomination will not change the balance of the Supreme Court before Justice Scalia died; it would remain a 5-4 conservative Court with Justice Anthony Kennedy in the middle.

So, unless membership in the Supreme Court changes again soon, the fate of these regulations may lie in the hands of a person as puzzling, powerful, and unpredictable as Donald J. Trump: Justice Kennedy.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.