What Trump Can Undo On Day One, According To The Congressional Research Service

The Obama legacy wasn't built in a day, and it will take Donald Trump more than a day to tear it down, despite his promise to rescind many of President Obama's actions on day one.
Trump can rescind Obama's executive actions with a stroke of the pen, but according to the Congressional Research Service, few of Obama's executive actions have been controversial.
Obama's more substantive actions will be more difficult to repeal.
"Despite the attention paid to executive orders, not all policy initiatives emanating from the executive branch have been implemented via executive order during the Obama Administration," CRS writes in a legal sidebar. "Some of the current Administration’s more contentious policies were instead implemented pursuant to discretionary agency directives and guidance documents."
CRS advises members of Congress on policy and law. In a series of reports just before Thanksgiving, it weighed in on the president-elect's prospects for rescinding Obama Administration actions and regulations. The reports were released by the Federation of American Scientists.
Agency Directives And Guidance Documents
Like executive orders, agency directives and guidance documents can also be revoked easily, but they "generally lack the force and effect of law," CRS writes. So revoking them doesn't have the impact of changing law.
For example, in October the EPA issued a guidance document on the control of emissions from the oil and natural gas industries, a sector Trump has vowed to liberate from regulation on day one. The guidance advises states on the best ways to regulate emissions from those industries, from the well to the consumer, but advise is all it does.
"This document does not impose any requirements on facilities in the oil and natural gas industry," the document states. "It provides only recommendations for air agencies to consider in determining" reasonably available control technologies.
Trump could rescind that guidance on day one, but on day two the oil and natural gas industries will still face the same regulations from state air agencies.
Some of the most powerful directives guide federal agencies themselves. For example, in 2013 the Justice Department instructed federal prosecutors not to enforce marijuana prohibitions in states that have legalized its use. Trump could repeal that.
Accordingly, policy guidances steer several agencies' actions on energy and the environment. Those were inspired by executive orders:
Executive Orders And Presidential Memoranda
While most of Obama's executive actions have not been controversial, according to CRS, a small number have been very controversial. For example, in 2009 he used an executive order to rescind barriers to stem cell research, and this year he used a presidential memorandum to normalize relations with Cuba. Trump could rescind those on day one.
The most powerful executive actions concerning energy and environment are probably several directives requiring federal leadership on sustainability. The most recent of these, issued in March 2015, requires federal agencies to reduce their direct greenhouse gas emissions at least 40 percent by 2025. Federal agencies also must reduce their energy intensity, improve the efficiency of their buildings, prefer sustainable products and clean technologies, and derive increasing amounts of energy from renewable sources.
Obama hoped to put the muscle of the federal government behind the clean-energy revolution. Trump could reverse that on day one.
A 2013 executive order directs federal agencies to consider and prepare for the impacts of climate change. Trump, who has called climate change a hoax, could also undo that on day one.
Rules and Regulations
But Trump will need many more days to undo Obama's most sweeping environmental regulations —the Clean Power Plan, the Mercury and Air Toxics Standard, the Clean Water Rule, the Ozone rule, the Cross-States Air Pollution Rule, bans on Arctic and Atlantic offshore drilling. These cannot be undone in a day, according to CRS:
Agency rules and regulations may also be repealed by a new administration; however, the repeal process can be time consuming and must comply with certain mandated procedures. The vast majority of agency “rulemakings” must comply with the APA’s notice and comment process, which requires an agency to provide the public with notice of a proposed rulemaking and a meaningful opportunity to comment on the rule (generally lasting 30 days or more). The APA explicitly defines rulemaking as “the agency process for formulating, amending, or repealing a rule.” Thus, whether issuing a new rule, or amending or repealing an existing rule, agencies are typically required to engage in the same notice and comment process. The APA provides explicit exceptions to the notice and comment requirements, including when agencies can show “good cause” for why such procedures would be “impracticable, unnecessary, or contrary to the public interest.” At times, agencies have relied on this narrow good cause exception as justification for not engaging in notice and comment prior to repealing a rule; however, these arguments have typically been rejected by the courts.
In light of these principles, and in the absence of specific statutory requirements, it would appear that a new President can generally direct executive branch agencies to revoke existing rules. In implementing that direction, however, the agency will likely have to engage in the notice and comment process to effectuate the repeal, and, in the case of a challenge to the repeal, provide a “reasoned analysis” for its decision to repeal the rule.
That doesn't mean Trump can't undo these rules, but he can't undo them on day one. One expert told E&E's Emily Holden that it could take more than two years to dismantle the Clean Power Plan, even though it hasn't yet been implemented.
If the Trump Administration rescinds these rules, it leaves itself vulnerable to lawsuits from injured parties:
"An agency’s repeal of a rule may generally be challenged by an injured party and will be subject to the same standard of review as new rules, namely 'arbitrary and capricious' review," CRS writes. "Under this standard of review, a reviewing court will consider whether the agency has 'examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”
Obama's most vulnerable regulation is probably the Interior Department's 2015 rule regulating hydraulic fracturing operations on federal lands. It requires reinforcement of wellbores and storage tanks to protect groundwater, and it requires drillers to disclose the chemicals they use. It was struck down by a Wyoming judge who determined Congress hadn't given Interior the power to regulate.
The Obama Administration filed an appeal, and Trump could simply drop the appeal. If Trump drops the appeal, oil companies would be spared from regulations they haven't yet faced, but only those drilling on federal lands. It would have no effect on most fracking operations, which take place on private land.
Trump can halt the progress on any new rules that have not been finalized, a slew of which are now in process, and with help from Congress, he can also dispense with Obama's recently finalized regulations. The Congressional Review Act allows Congress to revoke regulations that have taken effect within the last 60 legislative days—which will translate, when Trump takes office, to regulations finalized since May.
The Act has been used to revoke only one regulation since it was passed in 1996, an ergonomics rule implemented by Bill Clinton and overturned soon after George W. Bush was elected.
CRS has compiled a list of 48 major regulations vulnerable to congressional review, and Clyde Wayne Crews Jr. of the Competitive Enterprise Institute, which seeks to reduce regulation, has compiled a list of 140.
It can't happen on day one, but with a majority vote in both houses of Congress, Trump could halt regulations including:

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