Trump’s last-minute environmental rules changes may make things hard for Biden

Source: By Dino Grandoni, Washington Post • Posted: Tuesday, November 17, 2020

With just two months until Joe Biden becomes president, Trump appointees at the Environmental Protection Agency and elsewhere are up against the clock to lock in rules changes. The last-minute efforts could affect everything from vast tracts of remote Arctic wilderness and air quality nationwide to the everyday showers and clothes dryers in people’s homes.

Biden has promised to undo many of the regulatory rollbacks completed over the past fours years. But some of the Trump administration’s under-the-wire rules could end up hampering the Biden administration from aggressively tackling climate change and other issues right out of the gate.

“The last gasps of the administration,” said David J. Hayes, executive director of the State Energy and Environmental Impact Center at the New York University School of Law, “have the potential to either be a speed bump or a potential roadblock for the new administration coming in.” His group has launched the “Midnight Watch Project” to track the end-of-term efforts.

One of the first of the last-minute moves since Election Day is in the Arctic National Wildlife Refuge.

The Interior Department is set this week to ask oil and gas companies to choose where they want to drill in the untouched Alaskan wilderness. Should the Trump administration sell drilling rights within the refuge before Jan. 20, it may be very hard for Biden’s team to take back those leases.

In 2017, Republicans in Congress opened nearly 1.6 million acres of caribou and polar bear habitat there to potential petroleum extraction. But it has taken until this year for the department to be ready to hold a sale on drilling rights.

Frank Macchiarola, senior vice president of policy, economics and regulatory affairs at the American Petroleum Institute, told my colleague Juliet Eilperin that Trump’s team is “under a tight timeline.” But he added that the department is on legally solid footing: “Our view is that Congress has acted.”

Yet despite the 2017 law mandating a lease sale, Biden has promised to oppose drilling in the refuge, calling it “a big disaster to do that.”

When it’s all said and done, the Trump administration may finish a dozen significant actions before Biden’s inauguration

In addition to potentially leasing within the Arctic refuge, officials aim to complete a plan to open up another vast area in the National Petroleum Reserve-Alaska to drilling and to auction off extraction rights on more than 4,100 acres in central California on Dec. 10.

Interior may also formalize a more narrow definition of habitat for endangered species before Jan. 20. It could also further water down prohibitions on the incidental killing of migratory birds — a change long sought by some oil companies whose uncovered oil waste pits attract waterfowl.

At the Energy Department, officials may exempt some clothes washers and dryers from energy-efficiency requirements and change the definition of a showerhead to allow more water to flow before Biden and Vice President-elect Kamala Harris take office.

In previous speeches, Trump has complained about how he needs the right shower to maintain his “perfect” hair. Andrew deLaski, head of the energy conservation group Appliance Standards Awareness Project, called the nearly finalized move “policymaking to address the president’s pet peeves.”

At the EPA, chief Andrew Wheeler has said the agency will soon finalize a new rule updating the way water companies test for lead contamination in drinking water. The agency may also sign off on air quality standards for both ozone and particulate matter that are lower than what many public health experts say is necessary to prevent premature deaths.

The agency declined to say when any of that work would be complete. “EPA continues to advance this administration’s commitment to meaningful environmental progress while moving forward with our regulatory reform agenda,” spokesman James Hewitt said.

Perhaps most consequentially, the EPA has rules in the works that could tie the hands of the Biden administration.

Under Trump, the agency has proposed limiting the use of scientific research that does not make public their underlying data. The EPA says it is doing so in the name of transparency. It comes after a failed effort by conservative Republicans in Congress to make the change through legislation.

But some of the most important studies documenting the detrimental health impacts of air pollution rely on private medical records — and would no longer be used when crafting regulations.

The Trump administration also wants to prevent future leaders of the agency from including certain positive health effects, known as “co-benefits,” when analyzing anti-pollution rules going forward.

If the Trump administration gets either of those rules across the finish line, it will set up a “really tough battle for the Biden-Harris administration,” said Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists.

“These are really substantial rules that are fundamentally changing the way that mostly regulations on very large industries are implemented,” Rosenberg said, adding that both have been “completely slammed” by the scientific community.

There are a few ways the incoming administration can turn back the clock on any midnight rules.

For one, Biden’s team may simply decline to defend any last-minute changes in court when they are inevitably challenged by environmental and public health groups.

Congressional Democrats may also use the first several weeks of 2021 to strike down recently completed regulations with a law called the Congressional Review Act. But their success hinges in large part on whether the party wins two Senate runoff elections in Georgia scheduled for Jan. 5.

In the case of the Arctic oil leasing, it may take several weeks after a drilling rights auction for the leases to be finalized. If Biden takes office before then, the new administration may be able to grind the process to a halt.

It’s unclear if drillers will even want to take on the legal, political and engineering challenges of extracting oil and gas from the pristine, frozen landscape. Some major banks have already announced they will not fund oil and gas activities in the Arctic in response to environmental pressure.

But in other cases, the Biden administration will have to go through an entirely new process all over again to stop the Trump rules from taking effect. That could potentially siphon time and energy away from other environmental protection efforts — including heading off the disastrous rise in temperatures because of global warming.

Hayes, who served as Interior deputy secretary under Barack Obama and Bill Clinton, said “in some respects, it’s not surprising” for there to be so much almost-finished work. “There always are a lot of actions at the end of an outgoing administration.”

“But for this administration,” he added, “it’s particularly not surprising given that they’ve been slow on the uptake, and having had a hard time pushing certain rules through the process.”