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View from Washington By Steve Kopperud, SLK Strategies The Infamous First 100 Days A lot of big promises were made by United States (US) President Donald Trump during the seemingly never-ending primary elecƟon season and throughout the general elecƟon campaign, parƟcularly as to what he would do during his first days in office. Trump ballyhooed his “Contract with the American Voter” – his agenda for his first 100 days – during the waning days of the 2016 campaign. So what is expected? The first couple of years in a new president’s first term are considered golden. It is this relaƟvely brief period during which most new chief execuƟves enjoy their biggest achievements. Think President Barack Obama and the Affordable Care Act (ACA), no maƩer that as this is being wriƩen the GOPcontrolled Congress is dismantling that Obama legacy item. However, what must be remembered is the president is constrained by relaƟvely limited execuƟve authority to make big changes in policy and programs. This would explain why several of Obama’s execuƟve orders, alleged to have circumvented Congress, landed the administraƟon in federal court. It is that federal court landing that also complicates the legal status of various rules and program operaƟons. So in essence, the degree to which Trump can fulfill his campaign promises will be directly related to how clever White House, agency, and department lawyers can be, along with the issue prioriƟes of Congress. Right out of the block, Trump can be expected to focus on his nominee to the US Supreme Court to fill the vacancy leŌ by the late JusƟce Antonin Scalia. He will also take some perverse glee in sending legislaƟon to Capitol Hill to term-limit members of Congress – three terms, or six years, for House members and two terms, or 12 years, for Senators. Also early on, Trump said, will be a federal government hiring freeze unless the new hires work in the military, public safety, or public health. His challenge will be what to do about the explosion of contract workers on the government payroll. There are currently about 2.1 million federal employees – a six percent increase during the Obama years – along with 1.3 million military employees, but there are 3.7 million contract players, mainly due to Middle East military and security needs. Trump famously announced he will “cancel every unconsƟtuƟonal execuƟve acƟon, memorandum, and order” issued by his predecessor. He has also pledged to cancel all federal funding to so-called sanctuary ciƟes, those that he says ignore federal laws governing the arrest and deportaƟon of undocumented workers. On the regulatory front, Trump can use the power of his office to order agencies and departments to reverse or outright kill objecƟonable rules and regulaƟons, just as Obama used such authority to order the rules in the first place. Trump pledged during the campaign that “for every new federal regulaƟon, two exisƟng regulaƟons must be eliminated.” That is a tough one to deliver. However, the poster child for this kind of execuƟve acƟon is the controversial waters of the US (WOTUS) final rule, or as the Environmental ProtecƟon Agency (EPA) likes to call it, the clean water rule. The mechanism by which WOTUS will be rescinded will generally inform all execuƟve acƟons to miƟgate the Obama rulemaking legacy. It is WOTUS by which EPA and the US Army Corps of Engineers seek to expand their authority under the Clean Water Act (CWA) to bodies of water not heretofore under CWA protecƟons, including ditches, ponds, and so forth. The old version of the CWA cited EPA/corps authority over navigable waters of the US; WOTUS removes the word “navigable,” effecƟvely opening all waters – permanent or transient – to federal oversight. At the urging of general business and agriculture, including the NaƟonal Renderers AssociaƟon, Congress tried to kill WOTUS on several occasions but failed. The strategy was always to legally force EPA to withdraw the rule and start again but with greater stakeholder input. Trump, however, never talked about the agency starƟng the process anew; he talked about killing the rule outright. In this new Congress, the game to end WOTUS has begun. Senate Environment and Public Works CommiƩee members Senators Joni Ernst (R-IA) and Deb Fischer (R-NE) reintroduced a resoluƟon under the Congressional Review Act (CRA) to force EPA to withdraw or formally kill the controversial WOTUS. Ernst and Fischer acknowledge the CWA is important, but also contend the agency process from proposal to final rule was flawed. The CRA resoluƟon is more for show, but it will force the Senate at least into a public vote on WOTUS, something most Democrats hoped to avoid. ComplicaƟng any straighƞorward move to simply order EPA to rescind WOTUS are two realiƟes. First, the rule is final but enforcement is blocked because two dozen or so states sued to stop the rule, pushing it into review by the Sixth Circuit Court of Appeals in CincinnaƟ, Ohio. The White House would have to peƟƟon the federal court to hold the case in abeyance unƟl the new EPA and Army Corps of Engineers decide what they want to do to make Trump happy. However, JusƟce Department and EPA aƩorneys say federal judges may be reluctant to hold the rule since it is already finalized and on hold by court order. The federal attorneys explained that for the federal government to make WOTUS disappear, the agencies would have to either suspend or withdraw the rule, and then follow the lengthy noƟce of public comment and rulemaking under the AdministraƟve Procedures Act (APA). This acƟon will take a lot longer than 100 days. The Trump administraƟon would then have to decide if it intended to repropose the rule, and if it did, would have to start from square one. Similar circumstances will surround other controversial rulemakings now successfully tied up in federal court, including those execuƟve orders exempƟng certain classes of undocumented workers and their families from deportaƟon, rules to force carbon recapture at new and exisƟng coal-fired 6 February 2017 Render www.rendermagazine.com


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