President Biden is taking aim at more than 100 Trump-era environmental deregulatory actions, but it could be many months before any of those targets are dismantled.
The Biden administration will have to wade through the lengthy rule-making process in order to pull back a large number of the actions it is seeking to undo. If the Biden team wants to set stricter standards, as Biden has indicated he wants to for greenhouse gas emissions from cars, oil and gas production, and power plants, it could take even longer.
In those instances, federal agencies will also have to navigate negotiations with companies about where to set emissions restrictions and face likely legal challenges from anti-regulatory groups and Republican-led states.
“Changing the direction of the regulatory ship takes a while. In most departments, it’s a very slow-moving thing,” said Myron Ebell, energy and environment director at the libertarian Competitive Enterprise Institute, who led the Trump Environmental Protection Agency transition team.
“It seems to me they can make a fast start out of the gate, but they will, for each of these many, many items, find it’s a slow slog through the regulatory morass,” he added. Ebell, a fierce critic of regulation, suggested his group is ready to fight the Biden team to protect Trump-era actions such as rules loosening energy efficiency standards for household appliances such as dishwashers and clothes washers.
The Biden administration’s hit list is long. At the EPA alone, Biden is directing his team to review nearly 50 Trump-era actions, ranging from relaxed tailpipe greenhouse gas standards to restrictions on how the agency considers science in policymaking to decisions declining to tighten federal air quality limits.
The executive order also targets more than 30 actions at the Interior Department and many more across the Energy Department, Council on Environmental Quality, and other agencies.
Several of the Trump-era actions Biden has already decided he wants to revise and tighten, such as the fuel economy limits for cars and methane controls for oil and gas producers, as part of his aggressive climate agenda.
For others, Biden more broadly directs agencies “to review and take appropriate action to address” Trump-era actions “that were harmful to public health, damaging to the environment, unsupported by the best available science, or otherwise not in the national interest,” according to a fact sheet circulated by the president’s team.
There are a handful of Trump-era actions the Biden team can, and has, immediately put on hold. White House chief of staff Ron Klain issued a regulatory freeze memo Wednesday that halts any action that hasn’t yet taken effect for 60 days. Several last-minute Trump actions, including one at the EPA that would exempt industries such as oil and gas, petroleum refineries, and heavy industry from greenhouse gas standards, are affected by that memo.
Despite the slow regulatory timeline, however, the Biden administration is in a much more advantageous position than its predecessor.
The Biden transition teams and its initial staff filling the agencies are veterans of federal bureaucracy, and they’ll be able to avoid many of the Trump administration’s fumbles. For example, the Trump administration tried to pause Obama-era rules in moves the federal courts ultimately scrapped, setting back its efforts to repeal and replace actions.
“I hate to sound so critical of the Trump administration, but they sent people to EPA who knew almost nothing about EPA,” said Jeff Holmstead, an attorney with Bracewell LLP who served as the EPA’s air chief during the George W. Bush administration. “They were kind of in over their heads.”
It’s a completely different story with the Biden administration, Holmstead added. The EPA transition team, for example, boasted many agency veterans, including top political officials during the Obama administration.
Some of Biden’s supporters, too, say the new administration should undertake careful reviews of the Trump-era actions, even if that takes more time, because it will help the agencies build a record to overturn them.
“The key is making sure they’re right on the law and right on the science, so when the inevitable challenges come in the courts, that the rules hold up, and ideally that they are more durable and, frankly, provide more certainty for business,” said Collin O’Mara, president and CEO of the National Wildlife Federation.
“This is one of the cases where it’s better to be right than fast,” he added.
In some ways, the Trump administration’s experience offers a lesson for the Biden team: Cut regulatory corners and pay the price in the courts. The Trump administration ultimately lost many of its initial cases defending actions to keep Obama-era rules from going into effect because it bypassed standard regulatory procedures required by law.
Biden’s team will “move with as much deliberate speed as they can, while still being mindful of” legal constraints, said Stan Meiburg, director of Wake Forest University’s graduate programs in sustainability. Meiburg served at the EPA for nearly four decades, including as its acting deputy during the Obama administration’s second term.
“That’s the place that you have to be careful because it does you no good to have the best regulation in the world, but it’s overturned because it’s arbitrary and capricious,” Meiburg added.
