How Biden beat the clock on big environmental regs

Source: By Kevin Bogardus, Robin Bravender, E&E News • Posted: Thursday, June 13, 2024

The administration’s rush to finalize rules on power plants, public lands and energy efficiency was aimed at shielding them from a Trump presidency.

President Joe Biden and Donald Trump.

President Joe Biden and Donald Trump. AP

President Joe Biden’s regulators recently finalized a flood of major energy and environmental rules in hopes that they’ll stick even if Donald Trump returns to the White House.

Rule writers across the federal government hustled to complete sweeping new regulations in recent months — including everything from a high-stakes power plant rule on climate pollution to a policy governing conservation of public lands.

The dash to finish some of Biden’s biggest green rules aims to safeguard consequential policies if Republicans take the White House and make gains on Capitol Hill with this year’s elections.

In 2017, former President Donald Trump and his allies used a seldom-invoked law to unwind more than a dozen of the Obama administration’s rules. Biden’s team wants to ensure that doesn’t happen again as Trump has promised on the campaign trail to torpedo recent climate and energy policies, even suggesting he would cut the Interior Department and other environmental agencies, if the White House flips in this election.

That law, known as the Congressional Review Act or CRA, would allow GOP lawmakers and a Trump White House to unravel rules finalized within the last 60 legislative days of Congress’ prior session, essentially giving Biden’s opponents a veto pen for those later regulations.

A future Trump administration could also use the rulemaking process to replace Biden regulations anyway, but that process is time-consuming and more complicated.

“We were all leaning in,” Vicki Arroyo, the head of EPA’s policy office, said in an interview with POLITICO’s E&E News of the sprint to finalize major regulations early this year. “We were all on the same team trying to really deliver on these priority rules for the administration so that we could ultimately protect human health and the environment, which is what our mission is.”

CRA’s deadline for when the law’s “look-back” window begins is murky, although some observers believed it would be May 22, based on the House calendar for when Congress will adjourn for the year.

But James Goodwin, policy director for the Center for Progressive Reform, a liberal-leaning regulatory think tank, said Congress’ schedule is hard to predict. If lawmakers add more workdays to pass crucial legislation such as appropriations measures and the farm bill, that could lead to “the practical effect of the look-back deadline being pushed as far into the future as July,” he said.

“I would think that would not be beyond the realm of possibility,” Goodwin said.

‘Cognizant of a CRA window’

The administration and its allies kept a close eye on the calendar..“Obviously, everybody in town who follows these things is cognizant of a CRA window,” Arroyo said. “Depending on what trade press article you reviewed or who you listen to,” the deadline might be the end of May or it might stretch into June, she said.

But there wasn’t a “brass ring that we were going for” to finalize rules by a certain date, Arroyo said. The rules had to be “robust and defensible,” and it “took whatever time it took.”

Arroyo joked that she had heard that Richard Revesz — administrator of the White House’s Office of Information and Regulatory Affairs, which reviews federal rules — might have liked his birthday in early May to serve as a deadline for getting regulations wrapped up.

Agency officials were “obviously trying to work as hard as we could,” she said, but they had to be staggered somewhat “because you can’t push everything through at the same moment.”

A spokesperson for the White House’s regulatory office declined to comment when contacted for this story.

Goodwin emphasized major regulations take time, having to undergo public comment as well as agency and White House review, adding that a big, complicated rulemaking can take three to four years.

“Maybe they’re rushing a little at the end or working with a little more urgency with their eye on the calendar,” Goodwin said. “But I feel like most of them recognize that a lot of hard work has been put in them and they’re ready for prime time.”

Paul Billings, national senior vice president of public policy for the American Lung Association, had been “skeptical” when he looked at the administration’s regulatory to-do list this year, he said.

But taking stock now of the administration’s work so far this year, “overall, we are very pleased with the rules that they accomplished,” he said.

The Biden team gets “high marks for completing this work,” he said. As someone who “was not optimistic in 2023 that they could land all of these rules, I do give them some kudos for landing the rules.”

Wayne Crews, a fellow in regulatory studies at the Competitive Enterprise Institute, a free market think tank, said the Biden administration “may be breathing a sigh of relief over there,” issuing several regulations that appear safe from the Congressional Review Act next year.

“Rules that are out about now,” said Crews, citing late May and early June, are “under the hurdle.”

Under the gun

The Biden administration finalized some of its highest-profile rules in the weeks leading up to the potential deadline for the CRA’s look-back period.

The law requires agencies to submit their final rules to both chambers of Congress and the Government Accountability Office before they take effect. Those regulations are published in the Federal Register around the same time.

That starts the clock ticking. Lawmakers have 60 legislative days to offer a CRA resolution to ax a rule after Congress receives it. If the resolution is passed, the president then has to sign the measure into law to void the regulation.

Agencies have hit those milestones on some of Biden’s most consequential regulations, which should safeguard them from a look-back window in 2025.

In late April, EPA issued its long-anticipated climate rule for power plants, setting limits on greenhouse gases from future gas plants and existing coal-fired units. That rule was published in the Federal Register on May 9.

Also on that same day in April, EPA rolled out regulations setting mercury emission limits for power plants, cracking down on dangerous coal wastenear aging and former power plants and curbing the release of toxic heavy metals from coal plants into waterways. Those rules were published May 7, May 8 and May 9, respectively.

The Biden EPA in March finalized another signature climate rule that aims to slash greenhouse gases from cars and light trucks. That regulation was published April 18.

After repeated delays, the agency rolled out in February closely watched limits to reduce exposure to fine particulate matter, more commonly known as soot, in air. That rule was published March 6 in the Federal Register.

EPA also took a historic step this spring in setting drinking water standards for some members of the “forever chemicals” family, known as per-and polyfluoroalkyl substances, or PFAS. The final rule was printed April 26.

In addition, the agency also designated two of those chemicals, PFOA and PFOS, as hazardous waste under the Superfund law that same month. The regulation was published later May 8.

Regulators at the Interior Department have been busy, too. The Bureau of Land Management finalized a conservation rule in April — which was published May 9 — aimed at protecting natural spaces and restoring lands in the face of a warming climate.

The Energy Department has been occupied as well. The department launched its rule upping energy efficiency mandates for residential water heaters. It was published in the Federal Register on May 6.

The White House Council on Environmental Quality in late April finalized revisions to the National Environmental Policy Act’s regulations, which aim to revamp the nation’s foundational environmental law as the administration seeks to build out clean energy and combat climate change. The rule was published May 1.

As the administration finalizes its regulations, the president’s critics are plowing ahead to try to nullify them.

Lawsuits from GOP state attorneys general and industry groups have already poured in to challenge many of the rules in court. Republican lawmakers on Capitol Hill have submitted CRA resolutions to upend several regulations too, although they’re unlikely to pass the Democratic-controlled Senate and would be vetoed by Biden.

Yet if Trump and GOP allies are given the opportunity next year, they would use the Congressional Review Act to slash rules from a prior Democratic administration again.

“If Trump were to come in again, you could be certain that there would be another dozen rules overturned under the CRA next year, for starters, among other things that would be attempted,” Crews said.