Imagine the following: A new administration comes into power, promising to unshackle industry from the constraints of unnecessary environmental regulations. Lobbyists arrive with wish lists, and plans are promptly devised to undo undesirable aspects of the prior administration's legacy. The new administration issues an emergency rule to repeal a recent regulation affecting the chemical industry under the pretext that the regulation poses an urgent public health threat. Lawyers hurry into court and the emergency rule is struck down. Injustice (or at least bad policy) is averted, in the short run.

This scenario sounds awfully familiar today, but the year was 1995, and the new administration was that of New York Governor George Pataki who had just entered the statehouse after defeating three-term incumbent Mario Cuomo on a Republican wave that also swept Congress. Governor Pataki had set up an Office of Regulatory Reform, and one of its first visitors was the Chemical Specialties Manufacturers Association (CSMA), who were unhappy with a recent Cuomo rule that restricted the allowable concentration of the chemical DEET in insect repellants. What made the situation tricky for the new administration was that the restriction (to no more than 30 percent allowable concentration) had already been unsuccessfully challenged by the CSMA, with a final determination issued by the state's highest court, the Court of Appeals, just a few months earlier.

The restriction was based on the Department of Health's risk-benefit calculation that higher concentration DEET products posed unreasonable health risks, particularly to children, and were not much more effective at repelling insects than low concentration products. The extensive administrative record in the litigation included 44 studies documenting adverse health effects, including skin reactions ranging from rashes to large, painful blisters and permanent scarring, and neurological reactions, including agitation, disorientation, and seizures. Most DEET products, in fact, were lower than 30 percent concentration, but the CSMA disagreed that high concentration DEET posed an unreasonable risk, and presumably feared that any restriction would hurt the chemical's reputation.

What happened next triggered another round of litigation and holds lessons that are relevant today. It was springtime, and with summer approaching, the deer ticks that spread Lyme disease would be active again. While relatively easy to treat with antibiotics if caught early, Lyme disease, which has spread widely throughout the U.S. since 1995, can cause a variety of painful and debilitating symptoms (this author has had it twice, both times successfully treated in early stages). So the Administration decided that it would repeal the Cuomo regulation via emergency rule, on the grounds that high concentration DEET was needed to protect New Yorkers from Lyme disease during the approaching summer. The problem, and here is where the parallel to today's environmental and public health controversies comes in, is that the same agencies that were seeking the repeal were the ones that had sought the restriction in the first place and defended it in the courts, creating an extensive administrative and judicial record in the process. Naturally, many of the career public health professionals at those agencies were dismayed by the sudden reversal.

The attempted repeal was so swift and poorly executed that it caught the attention of the Chair of the Assembly Committee on Environmental Conservation, Richard Brodsky, a hard-charging, Harvard-trained lawyer who recognized the potential for a winnable court battle. I was his new counsel, two years out of law school and lacking any litigation experience. Assemblyman Brodsky quickly assembled a coalition of concerned parents, colleagues, and environmental groups to challenge the repeal under New York's Article 78 rule providing for review of agency actions. We soon filed a petition in State Supreme Court arguing that the Administration's actions were arbitrary and capricious, and that it had failed to comply with the procedural requirements for promulgating emergency rules. The court agreed. Brodsky v. Zagata,165 Misc.2d 510 (1995). On the substantive question of whether the Administration demonstrated a need for the repeal, the court stated: “The mere parroting of the phrase 'the public health, safety and welfare' with no specific fact, demonstrates to this Court the total absence of justification for this action.” On the use of the emergency rule procedure, it stated: “this record is devoid of any finding of immediate necessity, emergency, or undue delay because of a failure to follow the [State Administrative Procedure Act] “statement” requirement fully describing the specific reasons for such findings and facts.” Id. at 515. And on the overall unseemliness of the process, it stated:

In this case the manufacturing industry responsible for DEET has accomplished in weeks what it could not do in prior recent years during hearing and before the Courts … . [T]he actions of DEC are indeed arbitrary, capricious and an abuse of discretion … . This Court finds that action to be repugnant … . DEC completely relies on DOH who mainly relies on one study conducted by the very same industry it is regulating … . This Court cannot sanction such a blatant attempt to reward industry with less regulation without any opportunity for public comment and notice. This record also clearly shows the impetus for this repeal originated neither from DOH or DEC but rather from [the Director of the Governor's Office of Regulatory Reform], after meeting with representatives of the manufacturers of DEET.

Id. at 517. Unfortunately, as strongly worded as that decision was, it did not end the matter, as the new administration was determined to implement its agenda. It soon issued another emergency rule, this time fixing the procedural errors, but curiously failing to improve the justification. Back to court, and then another decision holding that there was still no rational basis for repealing the DEET restriction. Brodsky v. Zagata, Index No. 3689-95 (Sup. Ct. Albany County, July 17, 1995). At that point the Administration gave up on emergency rules and focused its efforts on the normal rulemaking process (which it had initiated several months earlier when it issued its first emergency rule), and on Oct. 5, 1995, it adopted the new rule. We challenged that rule as well, and on Dec. 28, 1995, the court issued its third decision. This time, the court leaned heavily on New York's version of Chevron agency deference and dismissed the complaint. In doing so, it pointed to a statement in a Court of Appeals case that “the party seeking to nullify such a regulation has the heavy burden of showing that the regulation is unreasonable and unsupported by any evidence.” Consolation Nursing Home v. Commissioner of New York State Department of Health, 85 N.Y.2d, 331-32 (1995) (emphasis added). The court stated that the administrative record developed in the rulemaking, which was naturally thicker than the one before the court in the emergency rulemaking but which, in our view, did not contain anything new in substance, “met the minimal requirement as established by the Court of Appeals.” Brodsky v. Zagata, 167 Misc.2d 175, 177 (1996).

We appealed that decision on the grounds that an “any evidence” standard would be impossible for any plaintiff to overcome. The Appellate Division dismissed our argument, essentially saying that the “any evidence” phrase means more than it says, stating: “That the evidence relied upon by the agency must be credible, and more than insubstantial, inheres in the requirement that the evidence “support” the contested action.” Brodsky v. Zagata, 222 A.D.2d 48, 51 (1996). It also pointed to what it believed was “new information” about DEET's efficacy and safety that was not before the court when the original restriction was being defended by the Cuomo Administration. Id. That information included an unpublished, non-peer-reviewed study by a DEET manufacturer, and a statement from EPA about the safety of DEET. But the study, which concluded that higher concentration DEET provided longer protection against insects, never said that the concentration was safe, and said nothing that was not already known and considered in the original rulemaking. EPA's statements likewise said nothing that was not already in the record. A petition for appeal of that decision to the Court of Appeals was unsuccessful.

So after several rounds of litigation, New York was in the same position as where it started, and where it stands today, with high strength DEET still available (although it is now harder to find). The question is whether this is what awaits on the federal deregulation front now. While the lawsuits were ultimately unsuccessful in the narrow sense, there was a different political dynamic at play that distinguishes it from current deregulatory efforts, and that was because Governor Pataki was a very different type of Republican than Donald Trump. He clearly cared about his pro-business credentials, but he also considered himself environmentalist, and the negative publicity he received from the DEET cases and other early environmental and public health missteps seemed to register. Before long, he set about repairing his reputation by proposing, and passing, a major environmental bond act to improve air and water quality across the state. In contrast, the current President is a determined anti-environmentalist, for whom negative publicity on environmental issues seems to be welcome. So litigation by blue states and environmental groups has had none of the “shaming” effect that the DEET cases seemed to have.

The DEET cases offer a few lessons in today's deregulatory climate. First is that deregulation is not as easy as deregulators wish it could be. As is obvious to those familiar with basic administrative procedure, repealing a rule requires … a rulemaking. And since that rulemaking will be judged by the same “arbitrary and capricious” standard as the original one, to withstand the inevitable challenge there needs to be some new information to justify the change in direction (or a new and credible way of looking at the old information). In the third DEET case, relating to the non-emergency rule, we did not believe there was any new information to justify repealing the 30 percent restriction, but the court did, and that was enough for it to conclude that the repeal had a rational basis. Which highlights another lesson from the cases—that agency deference is a powerful principle. The court seemed uninterested in the merits of whether restricting DEET concentrations would provide a public health benefit. It saw an agency doing what it was mandated to do—regulate pesticides—and a supporting administrative record that, while not substantial, was in its view adequate. Another court may have probed the substance some more and reached a different result, but that court had no interest. The case demonstrated what a low bar the agency had to meet to pass muster with the courts. After all, it did not need to demonstrate that the original restriction was irrational, but simply that there was a rational basis for not having a restriction. And considering 100 percent DEET was legal in every other state, that was not much of a hurdle.

The Trump Administration is currently trying to repeal, replace or delay approximately 45 environmental regulations and guidance documents, including ones relating to: carbon emissions from power plants; automobile fuel efficiency standards; emissions from rebuilt “glider kit” heavy duty diesel trucks; methane flaring in oil and gas production; power plant wastewater effluent limitations; and the definition of “waters of the United States” under the Clean Water Act. These efforts have been met with relentless opposition from Democratic attorneys general, environmental groups, and others. Dozens of cases have been filed in federal district and circuit courts to halt the Administration's efforts. Some have been successful, although as with the DEET cases, success can be temporary.

One case involves that Obama Administration's 2016 “Waste Prevention Rule” relating to the flaring of methane in connection with oil and gas production. 81 Fed. Reg. 83,008. The rule went into effect in January 2017, but in June 2017, the Interior Department's Bureau of Land Management (BLM) issued a notice that it was postponing the compliance dates for certain sections of the rule. In doing so, it cited §705 of the Administrative Procedure Act—which allows postponement of effective dates of rules pending judicial review upon a finding that “justice so requires”—and stated that “justice requires [BLM] to postpone the future compliance dates for [certain] sections of the Rule” in light of “the substantial cost that complying with these requirements poses to operators … and the uncertain future these requirements face in light of the pending litigation and administrative review of the Rule.” 82 Fed Reg. at 27,430. The states of California and New Mexico and a coalition of 17 conservation and tribal citizens' groups challenged the postponement in U.S. District Court for the Northern District of California.

As with the first DEET case, the court held that BLM's postponement attempt was flawed on both procedural and substantive grounds. With regard to procedure, the court agreed with plaintiffs that §705 applied to “effective” dates, not “compliance” dates, to which the rule related. California v. United States Bureau of Land Management, 277 F. Supp. 3d 1106 (N.D. Cal. 2017), appeal dropped (9th Cir. No. 17-17456). The court also carefully evaluated the BLM's justification for the postponement, which included reference to litigation pending in the District of Wyoming, and concluded that the BLM's postponement attempt was not driven by that litigation, as the statute required, but rather by the BLM's own decision to reconsider the Obama rule. So on this ground, too, the court found that §705 of the APA was inapplicable.

With regard to the actual justification for the rule, as in the first two DEET cases, the court found it to be very thin. The BLM cited the costs to industry of implementing the Obama rule, using the same exact Regulatory Impact Analysis it used in adopting the rule, but did not give any justification for imposing the harms of the postponement, in the form of the forgone benefits of the rules (which were well laid out in that Regulatory Impact Analysis and substantially outweighed the costs). Id. at 1122-23. The court concluded that the BLM's “failure to consider the benefits of compliance with the provisions that were postponed…rendered their action arbitrary and capricious and in violation of the APA,” and vacated the postponement notification and reinstated the original, Jan. 17, 2018 compliance date. Id.

Not to be deterred, in December 2017 BLM published a final rule delaying the compliance dates until 2019 (often referred to as the “Suspension Rule”). As in the second DEET case, the plaintiffs were soon back in court, and in February 2018, the court issued a preliminary injunction preventing the Suspension Rule from taking effect. California v. Bureau of Land Management, 286 F. Supp. 3d 1054 (N.D. Cal. 2018), appeal dropped (9th Cir. No. 18-15711).

As in the second DEET case, the court found the government's justification for its action to be lacking in substance, stating “BLM's reasoning behind the Suspension Rule is untethered to evidence contradicting the reasons for implementing the Waste Prevention Rule.” Id. at 1058. Also in February 2018, BLM released a proposed rule to replace the Obama rule and return to standards in place since the 1970s. That repeal was finalized on Sept. 18, 2018.

Shortly after the repeal was finalized, California and New Mexico and 18 environmental groups filed two separate suits in the U.S. District Court for the Northern District of California, both alleging that the repeal violated the Administrative Procedure Act, the National Environmental Policy Act, and the Mineral Leasing Act (the history of the Waste Prevention Rule cases can be found online).

What is clear from these efforts is that converting campaign promises of deregulation into reality requires building an administrative record that will withstand judicial scrutiny, and a basic adherence to administrative procedure. The problem with building that record, particularly in the early days of a new administration, is that the same agency staff that are called upon to justify a repeal may have built the case for regulation under the prior administration. As a result, it is not unusual for inexperienced political appointees to lead the charge on matters beyond their depth of expertise. Nonetheless, as we learned in the DEET cases, agencies are allowed to change and even repeal their own rules, as long as they can show they have a rational basis for doing so. Given the sheer number of federal environmental rule repeals currently in process, and the variety of jurisdictions in which they are pending, the Administration's opponents are likely to succeed, as we did, in many of the courts. Whether they can sustain those victories in light of agency-friendly jurisprudence will have significant consequences for the future of environmental law, and the environment.

John Rousakis, counsel in the Environmental practice at O'Melveny & Myers, is the former general counsel of the New York City Department of Environmental Protection.