By Quentin Riegel, NAM Vice President and Deputy General Counsel . . .
The Manufacturers’ Center for Legal Action (MCLA) brought suit against more than a dozen Obama administration regulations, and the incoming administration will affect the fate of each case. Regulations that were finalized some time ago cannot be overturned under the Congressional Review Act, which permits Congress to reject regulations with the president’s consent. Moreover, a federal agency that wrote a rule cannot reverse course without undertaking a long process of reissuing the rule and substantially justifying the change in direction.
How will President Obama’s regulations now in court fare in the months ahead? The courts may issue final rulings on the merits, or they could suspend the litigation while the agencies reconsider portions of the rules. Another possibility is that the parties agree to a negotiated settlement, a tactic sometimes used by environmental groups working with a friendly administration.
Below are some of the most significant active challenges:
Clean Power Plan: A nationwide stay remains in effect as this challenge to new Environmental Protection Agency (EPA) regulations of greenhouse gases emitted from electric power plants awaits a decision from a federal appeals court. Regardless of the outcome, appeals to the Supreme Court are likely. Changing the rule administratively would require a new rulemaking process.
Waters of the United States: A nationwide stay is also in effect for this rule, which defines the scope of federal jurisdiction over water permitting. The government’s brief was filed in January, but oral arguments have not been scheduled. Unless the executive branch seeks reconsideration, this case is likely to be appealed to the Supreme Court. A fundamental procedural question — which court should hear the case — will be resolved by the Supreme Court by July. Details about that case follow below.
Ozone: The EPA’s tightening of the nationwide ozone standard is fully briefed in a federal appeals court. Oral arguments are scheduled for February.
Silica: The general-industry compliance deadline for the Occupational Safety and Health Administration’s (OSHA) new rule cutting in half permissible exposure limits for silica and requiring expensive engineering controls is June 2018. Our legal challenge is currently pending in a federal appeals court. Manufacturers are disputing the agency’s reliance on out-of-date economic data and its underestimation of the costs on manufacturers and the entire economy.
Overtime: A nationwide injunction is in place preventing the implementation of this rule, which doubles the trigger for minimum salary requirements for some employees. The Department of Labor (DOL) has appealed the injunction, and the litigation will continue unless the new Administration reconsiders the rule.
Injury and illness prevention programs: The National Association of Manufacturers (NAM) is challenging OSHA’s prohibitions and limits on employer safety incentive and drug testing programs. The government is due to respond to our complaint this month, and any further briefing will carry well into the new Administration.
Source: NAM Center for Legal Action
