How A Law Is Implemented Depends On A President's Rules

Jan 26, 2017
Originally published on January 26, 2017 7:30 am
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President Trump and the Republican Congress have talked a lot about what they plan to do and undo, namely a lot of the programs and regulations put in place by President Obama and his predecessors. Stacey Vanek Smith of our Planet Money team reports that one of the most intense battles being fought right now is over rules.

STACEY VANEK SMITH, BYLINE: Chuck Nelson was a coal miner in West Virginia for more than 30 years.

CHUCK NELSON: I am a fourth-generation coal miner, so father, grandfather, great-grandfather. We all worked in the mines.

VANEK SMITH: Chuck was used to dirt and coal dust down in the mines, but in the 1980s, a coal processing plant was built right near his house.

NELSON: We started eating a lot of coal dust - I mean, bad, bad. I mean, I'd go to work and come home at night, and there would be a half inch of coal dust on everything in the house.

VANEK SMITH: Whoa, what does coal dust look like?

NELSON: It's just black powder.

VANEK SMITH: Chuck's wife started getting really bad asthma, so he tried talking to the coal company, but they ignored him. So Chuck started talking to environmental groups about the dust and other issues he was seeing in the area, like high cancer rates and contaminated water. They told him there is a law on the books regulating coal mining. It's the Surface Mining Control and Reclamation Act passed in 1977. But they said the law doesn't go far enough. They were pushing for a modification to that law, something called the Stream Protection Rule.

NEIL KERWIN: Rulemaking, as a process, is the most important source of law in America.

VANEK SMITH: Neil Kerwin is the president of American University and an expert on rules. He says laws are written to be sort of general and sweeping. Rules are written under the umbrella of a law. It's all the details, basically what the law looks like on the ground. The 1977 law said coal companies should not cause, quote, "material damage to the environment." The Stream Protection Rule wanted to be stricter about what material damage meant. Neil says a law can look really different depending on the rules used to enforce it. And presidents have come to love rules but for a totally different reason.

KERWIN: Rulemaking does afford the president the ability to enact public policy without interacting with the Congress.

VANEK SMITH: Rules don't need to be approved by Congress. Congress can comment and so can the public. But basically when it comes to rules, what the White House says goes - not that it's a speedy process. The Stream Protection Rule was in the works for nearly a decade. It's 1,200 pages long, and even still, it barely made it in under the wire. The rule went into effect on the very last day of Obama's presidency. But once a rule is passed, undoing it is really hard, says Neil Kerwin.

KERWIN: You go through the same process to repeal a rule or alter a rule as you do to write one in the first place.

VANEK SMITH: So a lot of work.

KERWIN: A lot of work (laughter).

VANEK SMITH: This was a major point of frustration for mining advocates. Adam Eckman is a lawyer for the National Mining Association. He spent years fighting the Stream Protection Rule. He says, in the end, it was a rush job. The comment period was minimal, and a lot of concerns were just ignored.

ADAM ECKMAN: For the agency to then move forward with the rulemaking, you know, just a couple weeks before the end of the administration. So yeah, I mean, obviously I was very disappointed to put it mildly.

VANEK SMITH: So Adam and his colleagues started pushing for lawmakers to use the Congressional Review Act. It says that Congress can overturn any rule within 60 congressional days of it being finalized as long as the president signs off. It barely ever gets used because most presidents are not going to kill a rule they just issued. But with a new president in the White House, it is suddenly taking center stage. And if a rule gets erased with the Congressional Review Act, that rule can never be reissued. Mining advocate Adam Eckman says this is a democratic process, a lot more democratic than presidents just pushing through rules. But for Chuck Nelson, the coal miner, the prospect of all that work just getting erased seems really unfair.

NELSON: All this work we've done for years, all that's gone, all that work, you know, that's just going to be wiped away with the stroke of a pen.

VANEK SMITH: More than 60 of the rules Obama passed are vulnerable to the Congressional Review Act, including rules to protect funding for Planned Parenthood, ban offshore drilling in parts of Alaska and, of course, the Stream Protection Rule. And behind each rule, there are people like Chuck Nelson nervously watching and waiting to see what Congress will do - or undo. Stacey Vanek Smith, NPR News. Transcript provided by NPR, Copyright NPR.