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Trump’s Last-Minute Flubs Open Window for Biden to Rewrite Rules

Feb. 4, 2021, 10:50 AM

Skeptical courts are giving President Joe Biden a window to reopen last-minute rules that the Trump administration tried to rush out to beat a regulatory freeze.

Recent decisions gave Biden’s administration opportunities to move faster than rulemaking processes would usually allow to undo limits on how the EPA uses science when writing its regulations, and rules that redefined how U.S. companies pay highly skilled foreign workers.

The legal rebukes mean the rules will either be set aside or get caught up in the regulatory freeze the Trump administration sought to avoid, making it easier for the Biden team to reverse course.

The law permits an agency to skip collecting public feedback or a customary waiting period on making a regulation effective if it has “good cause” that doing so would be “impracticable, unnecessary, or contrary to the public interest.” The courts have said that at least three last-minute Trump administration rules didn’t meet that criteria.

It isn’t unusual for outgoing administrations to rush to complete their priorities before the next president takes office. However, attorneys specializing in administrative law said that they haven’t seen an outgoing administration make such widespread use of the “good cause” exemption to achieve that goal.

“What we’re seeing is that was a risky strategy for them legally because it left rules open to challenge,” said Deepak Gupta, who represented the Environmental Defense Fund in litigation on the EPA science rule.

Uncommon Use

The courts have warned agencies for at least a decade not to abuse this exemption, with the U.S. Court of Appeals for the District of Columbia Circuit saying as far back as 2012 that it should “be narrowly construed.”

That made it difficult for agencies to defend last-minute Trump rules that skipped procedures.

The Environmental Protection Agency’s attempt to use the exception to speed up the “secret science” rule, for example, failed late last month when a federal court in Montana said the agency hadn’t justified its decision to put the rule into effect immediately. Chief Judge Brian Morris of the U.S. District Court for the District of Montana said the EPA “failed to show a need for urgent implementation when it took more than two-and-one-half years to finalize this regulation.” That same day, the president promised his administration would make “evidence-based decisions” guided by the “best available science.”

In the case of Homeland Security and Labor rules on H-1B visas, a federal judge in Oakland found that the administration’s notice and comment shortcuts weren’t justified by the “good cause” exemption because the agencies cited the Covid-19 pandemic as justification but issued the rules at least six months after the outbreak began. Biden has said in recent weeks that he’d like to work with Congress on changes that benefit visa holders and U.S. workers, but hasn’t yet provided specifics.

The losses mirror the Trump administration’s poor overall record defending its deregulatory attempts in court. One analysis from the Institute for Policy Integrity at New York University found the administration lost more than 80% of its legal attempts to undo regulations or write new rules.

Historically, agencies have used the “good cause” exception to speed up implementation of a rule in an emergency, said Kathryn Kovacs, a Rutgers law professor who specializes in administrative and environmental law. The Federal Aviation Administration, for example, used the exception to temporarily pause medical exams for pilots during the pandemic.

It’s unusual to see an administration use the exception to speed last-minute rules out the door, said Renée Landers of Suffolk University.

“I just don’t think the courts are going to buy it,” Landers said. The takeaway from the various court losses is that “the end of the administration is not ‘good cause,’” she said.

—With assistance from Genevieve Douglas, Ellen M. Gilmer, and Stephen Lee

To contact the reporter on this story: Courtney Rozen in Washington at crozen@bgov.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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