From: The Agenda
By JOHN GRAHAM and KEITH BELTON
Third, the general counsels at federal agencies need to work hard to ensure that each procedural requirement for deregulation has been honored; the easiest way for a federal judge to block deregulation is to point to a procedural box that has not been checked. Reviewing how and why prior legal challenges succeeded or failed will be helpful for administration officials to chart legal strategy.
Fourth, Trump’s regulatory czar in the White House Office of Regulatory Affairs needs to work with federal agencies to make sure that regulatory impact analysis considers both the benefits of regulation as well as the cost savings from deregulation. If the analysis ignores or downplays forgone benefits, it will be easier for a federal judge to determine that the administration has been “arbitrary and capricious” and to overturn the regulatory action. The administration’s climate-related rulemakings are especially vulnerable in this regard, since the official 2009 Environmental Protection Agency finding that climate change “endangers” public health and welfare under the Clean Air Act is still in effect. The stronger the analysis and administrative record, the more difficult it becomes for a judge to find the action to be “arbitrary and capricious.”