The EPA and Interior Department under President-elect Joe Biden will have a range of tools at their disposal to start undoing President Donald Trump’s deregulatory agenda on the environment, according to former agency officials, lawyers, and environmentalists.
Many of the administration’s more ambitious environmental goals, such as reviving regulations on climate pollutants from power plants and automobiles, will take longer to change or put into place. But most observers expect Biden’s team to get working immediately after inauguration on smaller measures, such as the “secret science” rule that would block the EPA from using scientific research that isn’t or can’t be made public.
“They’ll be starting right out of the gate,” predicted Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School.
But some who support Trump’s rollbacks warn that Biden will pay for being too ambitious in efforts to reverse them.
“The election was a clear mandate for moderation,” said Kathleen Sgamma, president of the Western Energy Alliance, an oil and gas industry trade group. “We’ll no doubt see some changes in the first 100 days, but there is just no room for radical socialist ideas.”
‘Stroke of a Pen’
One of the fastest and easiest actions the environmental agencies can take is to strike down Trump-era guidance that the Biden team disagrees with, said Sam Sankar, senior vice president for programs at Earthjustice.
“That can be done with the stroke of a pen,” Sankar said.
Dozens of such guidance documents are now on the books. Among the candidates for immediate rescission is an October memo from the Environmental Protection Agency, arguing that the Clean Air Act gives states flexibility to administer air pollution requirements and saying some exemptions are appropriate, Sankar said.
Another likely kill is an April 2018 memo on metrics known as significant impact levels, which set thresholds for how much air pollution facilities can produce when expanding or upgrading without degrading air quality, according to Sankar.
The Biden administration also plans to rejoin the Paris climate accord almost immediately without congressional approval. The U.S. officially left the agreement on Nov. 4.
Monuments, Environmental Justice
Biden is also expected to immediately restore the boundaries of the much-contested Bears Ears and Grand Staircase-Escalante national monuments in Utah, which former Trump reduced in size, said Drew Caputo, vice president of litigation at Earthjustice. Conservation groups and Native American tribes are also challenging the moves in court.
“Biden could come in and redesignate the entirety of Bears Ears as a national monument,” Caputo said. “That would basically fix the problem.”
The White House or agencies could also swiftly issue their own guidance or executive orders to start putting their agenda on paper. One example is a new guidance document that directs agencies to consider environmental justice in their decision-making, said Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center.
That would be consistent with the direction Biden has signaled on the campaign trail, and a bill that Vice President-elect Kamala Harris introduced in July as a senator from California, that would require permitting agencies to consider cumulative impacts to frontline communities under the Clean Water Act and Clean Air Act.
Bureau of Land Management decisions and land plans made under deputy director William Perry Pendley could also be set aside nationwide, said John Leshy, a real property law professor at the University of California, Hastings, and former Interior Department solicitor in the Clinton administration.
A Montana court in September deemed Pendley’s tenure as acting land bureau director illegal because it violated the Federal Vacancies Reform Act.
Biden could also ask his new agency solicitors to issue rapid legal opinions, such as claiming that actions taken during the time Pendley served at Interior were unlawful, said Mark Squillace, a natural resources law professor at the University of Colorado, Boulder.
Such a ruling would have the practical effect of invalidating a Trump regulatory rollback until a court overturns the solicitor’s ruling or a new rule replaces it.
“Someone might challenge that opinion, but my guess is that a carefully written opinion would be tough to overturn,” Squillace said.
The Biden team could also simply stop working on pending rulemakings that cut against his agenda by preventing them from becoming final, said Kevin Minoli, who worked at the EPA from 2000 to 2018 and is now a partner at Alston & Bird LLP.
“I would expect on Day One, at 12:01, there will be a direction to put pens down on things that are not yet final, and to take actions to prevent things from publishing in the Federal Register,” Minoli said. “And if it’s been sent to the Federal Register but not yet published, the direction will be to send it back.”
One high-profile target could be the “secret science” rule, a sharp break from its decades-old approach to regulatory science—if the rule isn’t final by Inauguration Day.
The EPA could also swiftly drop pending lawsuits over regulations that the Biden team doesn’t want to appeal because the rules are inconsistent with their agenda, Sankar, from Earthjustice, said. In cases where courts have remanded rules back to the EPA for further work, the agency’s reconsideration is likely to be that “we don’t want to do this anymore,” he said.
The Biden administration could pursue voluntary remands of contested regulations in some cases, rather than continuing to litigate them. Agencies are poised to backtrack on major Trump-era rules, including the Affordable Clean Energy rule, federal auto emissions standards, and the rollback of methane restrictions for the oil and gas industry.
NEPA, Climate Change Goals
But if the EPA wants to undo final rules issued by the previous administration, the agency will have to launch entirely new rulemakings—a process that generally takes years, often embroils agencies in heated squabbles with stakeholders, and sometimes leads to court battles.
“The Biden administration is going to have to be careful about putting its resources toward the most important rulemaking proceedings,” Sankar said.
Trump’s National Environmental Policy Act regulatory rollbacks fall into the category of long-term regulatory reversals. Finalized in July, the reforms scale back what kinds of environmental consequences agencies consider when approving new oil wells, pipelines, highways, and other projects.
The Biden administration will also be under enormous pressure from environmental groups to show it’s tackling climate change across a host of agencies. The EPA in the Obama administration tried to set greenhouse gas emissions limits on power plants, only to have the U.S. Supreme Court stay the regulations in 2016. It’s unclear whether Biden’s EPA would try to resurrect those rules, or start from scratch—and how the newly reconstituted Supreme Court would view those moves.
Nicolas Loris, an economist at the conservative Heritage Foundation, said he’s concerned that Biden policies that restrict access to domestic resources could increase energy prices, thereby making it harder to build certain projects and punishing consumers—an especially worrisome prospect given the economic strain brought on by the coronavirus pandemic.
“I worry that that’s not going to fundamentally shift the consumption of those resources, and that a lot of that production will take place in other parts of the world where the environmental standards aren’t as rigorous as in the U.S.,” Loris said.
CRA Off the Table?
Congressional Democrats’ ability to use a legislative tool to nix last-minute Trump administration rules may have narrowed. Unless two Georgia Senate Democratic candidates prevail in runoff elections in January, Democrats will find it harder to use the Congressional Review Act, which gives the House and Senate 60 session days after a rule is finalized to vote to nullify it with a simple majority.
One regulation Democrats could use the act to strike down is a U.S. Forest Service rule published in late October that strips protections from Alaska’s Tongass National Forest—America’s largest—which is now open to new logging and mining.
Plurus Strategies President David Leiter, a Democratic strategist in Washington, said it’s unlikely Biden will use the CRA if the Senate remains under GOP control.
“How do you get a CRA done? It’s got to pass both House and Senate,” Leiter said. “It feels to me like if it was low on that scale of tools they might utilize, it’s dropped way to the bottom, and maybe off.”
—With assistance from Dean Scott and Ellen M. Gilmer.