The Trump administration’s EPA is on track to finalize three rules that could cause procedural headaches for the incoming Biden administration and provide avenues for companies to legally challenge new pollution limitations.
The three rules are:
- The “science transparency” rule, which says that the EPA will no longer utilize anonymous medical data from public health research that cannot be independently validated in proposed regulations.
- The Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process rule, which “would limit the agency’s ability to consider the co-benefits regulations on air pollution offer, such as fewer deaths and sick days, giving more weight to concerns over the compliance costs to industry,” according to HuffPost.
- The third rule, EPA Guidance; Administrative Procedures for Issuance and Public Petitions, became effective on November 18, 2020, and changed the way the Agency deals with guidance documents. This rule requires the EPA “to respond to any request to rescind, reinstate or modify any guidance ever issued within 90 days or face lawsuits that one former official warned would ‘paralyze’ the agency,” according to HuffPost.
The EPA has announced the first two rules are expected to be finalized by December.
All three rules have been characterized as “litigation bait for industry” by Andrew Rosenberg, director of the Union of Concerned Scientists’ Center for Science and Democracy, according to HuffPost. “They give industry many more opportunities to challenge rules that would protect the public.”
Getting these rules off the books will be a priority for the incoming Biden administration, said Elizabeth “Betsy” Southerland, the former science and technology director of the EPA’s Office of Water, who spent three decades at the Agency, according to HuffPost.
These three rules may just be the tip of the iceberg, according to an article in Science Magazine that was originally published in E&E News.
“I think it’s probably going to be an all-hands-on-deck to get as much accomplished as possible,” said Nick Loris, an energy policy expert at the Heritage Foundation, according to Science Magazine.
Experts are predicting a last-minute regulatory dash. “I think we’re going to see a crash rear-guard effort by the Trump administration to do as much anti-environmental stuff before they have to turn out the lights,” said Earthjustice Attorney Drew Caputo, according to Science Magazine.
The New York University School of Law’s State Energy & Environmental Impact Center recently launched a “Midnight Watch Project” to track these last-minute regulations that industry will find helpful.
Reversing the Rules
Biden’s administration will be faced with undoing many of these regulations to clear the way forward for its environmental agenda.
One path for reversing the rules is to challenge them in court. Environmental groups and Democratic attorneys general are expected to sue to block the first two rules, as Biden’s Department of Justice is unlikely to defend the new rules.
Biden’s administration could also request courts to vacate the rules, said Michael Gerrard, the director of Columbia Law School’s Sabin Center for Climate Change Law, according to HuffPost.
Eliminating the new rules “is basically a done deal,” Gerrard said. “None of this will last. It’s almost gratuitous obstructionism by a defeated administration to try to throw speed bumps in the way of progressive action.”
The Biden administration may also be able to halt implementation of some last-minute rules pending review. “There is a lot of elbow room in terms of how long they change the effective date,” noted Jim Tozzi, who helped launched the White House Office of Information and Regulatory Affairs (OIRA) under President Jimmy Carter.
Another avenue for revoking Trump’s rules is the Congressional Review Act (CRA). This is a more difficult route with a Republican-controlled Senate.
“Doing so would eliminate the EPA’s legal authority to make similar rules in the future,” according to HuffPost. If Democrats were in control of both legislative chambers, these rules could be legislatively canceled, and new legislation could be passed to restore the EPA’s mandate. If Democrats controlled both chambers of Congress, Biden’s allies could cancel the rules under the law and pass subsequent legislation restoring the Agency’s mandate. With the current political makeup, this route is unlikely.
“The CRA is a dangerous instrument,” Rosenberg said. “It’s just a bad law.”
The CRA was part of Newt Gingrich’s “Contract With America.” It received little use until 2017, when it was used by Congress to revoke some of Barack Obama’s regulations.
There are five design flaws inherent in the CRA, according to Dan Farber, an environmental and constitutional law professor at Berkley Law, as published in Legal Planet.
- It provides little time “for Congress to gather evidence or deliberate” and requires Congress to reject the entire regulation rather than portions of the regulation.”
- “… [T]he law is basically useless except when control of the White House flips and the new President also has control of Congress. Under those circumstances, use of the CRA is inevitably seen as partisan and therefore divisive.”
- “… [T]he CRA creates the false impression that Congress is exercising real control over the administrative process.”
- “… [G]iven that only a small number of regulations can be reviewed, the selection is necessarily arbitrary.”
- “… [T]he provision that prohibits an agency from proposing a substantially similar regulation after a rule is disapproved. This provision seems to have been initially added to prevent agencies from doing an end-run by reissuing the essentially same rule all over again. It applies, however, even years in the future, when the need for a rule may have become obvious to everyone.”
Whomever Biden picks to head the EPA will have his or her hands full in the first few years reversing regulatory rollbacks and seeking to bring back scientists and researchers who left during Trump’s administration or attracting new talent to the Agency.
“Ramping up air pollution limits, capping carbon emissions from power plants and increasing fuel economy standards for new vehicles could ‘take two to four years, because it’s not a simple repeal, it’s an actual replacement,’” said, Elizabeth “Betsy” Southerland, the former science and technology director of the EPA’s Office of Water, according to HuffPost.
Before any of these changes could take effect, it is almost certain these new rules will be revoked.
“To take effect, the regulations on science transparency and public health co-benefits will need to be published on the Federal Register under a certain timetable, and that could be delayed in favor of other agencies seeking to cement last-minute rules,” according to HuffPost.
“The question is who’s going to throw their weight around ? another agency might take precedence and pages away from EPA,” said Ann Weeks, the legal director at the nonprofit Clean Air Task Force, according to HuffPost. “Publication in the Federal Register is one of those mysteries that we all try to divine.”
Other experts predict the Biden administration will have no issues reversing and revoking the rules put in place by the Trump administration. “These rules are not consistent with the law,” said David Hayes, the executive director of New York University School of Law’s State Energy & Environmental Impact Center, according to HuffPost.