The Biden administration pushed out a flurry of major environmental rules early this year under a looming threat of rollbacks if former President Donald Trump clinches the White House in November’s election.
But some significant rules won’t get out the door in time to shield them from being reversed if Trump wins, a reality that was on stark display last week when the Biden administration released its plans for upcoming regulations.
Some priority rules started by the Biden administration — including climate standards for existing gas-fired power plants, a rule to limit lead and copper in drinking water, and an effort to protect workers from extreme heat — could be doomed.
“Everything is vulnerable should the administration flip,” said Brett Hartl, government affairs director at the Center for Biological Diversity.
Regulations completed later this year could be unraveled by Trump and Congress under the Congressional Review Act, which allows lawmakers and a sympathetic White House to undo recent rules. And a second Trump administration could freeze pending rules upon taking office.
“Anything that’s not finalized, in theory they’ll just withdraw,” Hartl said.
Conservatives are feeling hopeful about the prospects of Trump regaining the White House following the recent presidential debate and calls from some Democrats to replace Biden as the nominee. And many are optimistic about the chances for curtailing agencies’ regulatory reach in the aftermath of a major Supreme Court ruling this spring that overturned the so-called Chevron doctrine.
Within conservative circles, there are discussions about “if things change and go our way — meaning President Trump gets in — then how can we use this to implement a smaller-government vision,” said Mandy Gunasekara, who served as EPA’s chief of staff during the Trump administration.
Spring rule rally is over
With the prospect of another Trump administration looming over Biden’s regulatory agencies, executive branch officials have hustled to ensure that some of their top-priority rules were completed by this spring.
Earlier this year, Biden’s agencies finished a series of significant regulations, including a high-stakes power plant rule on climate pollution, a policy governing conservation of public lands and drinking water standards for some members of the “forever chemicals” family known as per- and polyfluoroalkyl substances, or PFAS.
“A lot of the big rules that we were watching did get out,” said Matthew Davis, vice president of federal policy at the League of Conservation Voters.
“They’ve been doing a lot of hard work to clean up our air and our water and our land and clean up our climate, and protect us from toxic chemicals,” Davis said. But “there is still more work to do.”
Biden’s regulators aren’t finished.
Vicki Arroyo, who leads EPA’s policy shop, said in an interview with E&E News last month before the latest regulatory agenda was released that the agency expected its forthcoming regulations would be picked over by critics.
“Obviously, different rules will in various people’s minds be more or less scrutinized. Some of them have not just statutory deadlines, but also court deadlines,” Arroyo said. “The spring agenda will be our statement of when we believe those rules will be coming out.”
A White House spokesperson declined to comment for this story.
Some rules that are still pending might get axed or overhauled if Trump wins. It’s happened before.
In 2017, Trump and his allies used the CRA to unwind more than a dozen of the Obama administration’s rules that hadn’t yet been finalized. Moreover, recent decisions from the Supreme Court could now make it even easier for opponents of the Biden administration’s rules to overturn final regulations in court.
James Goodwin, policy director for the Center for Progressive Reform, a liberal-leaning regulatory think tank, said while the CRA can speed up the demise of rules, measures under the law still suck up precious floor time that could slow down other Republican efforts, such as the Senate confirming controversial nominees.
“It almost becomes our friend,” said Goodwin. Every hour lawmakers spend on CRA resolutions, “They’re not putting Voldemort in to run the Department of Commerce,” he added, referring to the villain from the “Harry Potter” series.
Goodwin said he worries that Republicans could win a trifecta by taking control of all three branches of government. That fear has increased, given Biden’s recent debate performance that sparked calls from members of his own party to drop out of the race.
“I’m a little more concerned now than I was a week ago,” Goodwin said after the presidential debate.
He said the Biden administration now has two choices when it comes to regulations.
“One option is that they just circle the wagons and stop doing everything because they’re terrified,” Goodwin said. “The other option is they come out aggressive and say, ‘Look, we’re going to do good things in the second term.’”
Rules to watch
Biden’s team hasn’t yet finalized several high-profile rules, including many highly anticipated by allies in the environmental movement.
EPA is expected to roll out a revised lead and copper rule for drinking water systems, which would trigger action sooner to reduce lead exposure and require lead pipes to be replaced within 10 years. That rule isn’t expected to be completed until October.
A major climate regulation — a draft EPA rule to clamp down on greenhouse gas emissions from existing natural gas power plants — is expected in December, according to the regulatory agenda.
The Interior Department will be busy at the end of the year, too.
The Fish and Wildlife Service plans to take final action on regulations promoting the wildlife refuge system’s biological diversity and environmental health by December, while the Bureau of Ocean Energy Management aims to propose “fitness to operate” standards for offshore oil companies in January next year.
Meanwhile, the Department of Energy has an array of energy efficiency standards waiting to be finished as Election Day approaches. Those include conservation rules for commercial ice makers in September, commercial refrigerators and freezers in November, and consumer boilers in December.
“They engender a lot of political hostility. Conservatives really hate them,” Goodwin said about the energy efficiency standards. He added if any of those are offered during the Congressional Review Act’s “look-back” window, they would be under threat.
“It’s going to have a big fat target on its back if Republicans take control of both houses of Congress and the White House,” Goodwin said.
Biden also last week announced heat protections for an estimated 35 million workers, a cornerstone rule for mitigating extreme weather fueled by climate change. Yet the Occupational Safety and Health Administration plans to give notice of the proposal next month with no final date listed.
Paul Billings, national senior vice president for public policy at the American Lung Association, is keeping an eye out for EPA’s forthcoming air quality standards on ozone.
A time frame for those limits, which were delayed last year, still isn’t clear.
“Last August, EPA punted on ozone, and we’ve been dismayed at the slow pace,” Billings said. “We think it’s important for them to continue to move forward on doing the work to get that rule done.”
Environmental advocates have been prodding the administration to move quickly to get their regulations on the books.
Biden’s agencies “have spent a lot of time doing their best to harden these rules against what we know will be court challenges, and in so doing they’re also making it much more challenging for a Trump administration to legally reverse the rules,” said Davis of the LCV.
During the first Trump administration, the rollbacks of the Obama administration’s rules “were often sloppy, were not based in legal fact and were not based in science,” Davis said.
“They did not survive well to court challenges ,and I think the due diligence and the hard work that the Biden-Harris administration has put into all of these rules in making them legally durable will make it more challenging for a potential future Trump administration to make their undoings legally durable,” he said.
