President Biden and the Democratic majorities in Congress have announced sweeping plans to reverse most of the Trump Administration’s environmental policies. The timing and practicality of these reversals depends very much on each of the targeted policy’s legal status – laws, regulations, Executive Orders, or guidance documents. The remainder of this note comments on each of these sets of situations, highlighting examples of each. I’ll discuss them in order ranging from quickest/easiest to most time consuming/difficult.
Actions with immediate effect
● Replacing Executive Orders
Traditionally, most presidential Executive Orders (EOs) applied explicit authority under Congressionally-enacted laws to direct federal agencies in how to administer laws as regulators, comply with laws as regulated entities, or conducted planning and inter-agency cooperative activities. Within this framework, Presidents frequently revised or repealed their predecessor’s EOs, in order to impose their own priorities – akin to appointing their own cabinet secretaries and senior administrative personnel.
In recent decades, however, Presidents have expanded their implicit authority to interpret such legal authority more expansively, or to fill apparent gaps in statutory enactments with assertions of Presidential power. These expansions have raised the priority for quicker reversals of EOs inherited on inauguration day. President Biden has been especially fast and prolific. He issued two dozen EOs in his first week in office, including one reversing a number of President Trump’s EOs (some of which I wrote about at the time, including the Regulatory Reform EO 13777 (HERE) and restrictions on agency guidance documents EO 13891 (HERE), and also one on “Tackling the Climate Crisis at Home and Abroad" (published 2/1/21 Federal Register) (HERE). These new EOs are effective immediately, with effects base on schedules and deadlines they contain.
● Rejoining the Paris Agreement
In December 2015, the US was a pivotal player in negotiation of the Paris Accord expanding global efforts to combat climate change (I wrote about this HERE). In June 2017 President Trump announced that the US would withdraw, although the terms of the Agreement delayed withdrawal until November 4, 2020, the day after the national election (HERE). On January 20, 2021 President Biden formally re-joined the US to the Agreement.
Taking control of federal rulemaking and implementation policies
Each newly-inaugurated President assumes charge of agencies with rulemaking authority, and with a plethora of rulemakings already underway. Individual rulemakings typically advance through procedural stages include Advanced Notice of Proposed Rulemakings (ANPRs) that operate as scoping documents, Proposed Rules subject to comments and additional revision, and Final rules that become effective on dates set within the rulemaking. New Presidential administrations typically intervene in these procedures.
Agencies also accomplish a great deal of quasi-regulatory direction by issuing and following guidance documents. Notably, one of the Trump EOs rescinded on President Biden’s first day in office was President Trump’s October 2019 EO 13891 (Promoting the Rule of Law Through Improved Agency Guidance Documents) which added restrictions on these documents (I wrote about that EO HERE).
● Delaying adopted-but-not-yet-effective rules
On January 20, President Biden’s Chief of Staff Ronald Klain issued a Memorandum for the Heads of Executive Departments and Agencies, “Regulatory Freeze Pending Review.” The Memo seeks to freeze work on formal rules, in all of the following three stages:
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no new rules are to be proposed or finalized until reviewed and approved by an appointee of the new administration
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any rules that have been sent to the Office of the Federal Register for publication, but not yet published, are to be withdrawn immediately (i.e., for further review and approval)
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any rule that has been published in the Federal Register, but not yet effective as of January 21, should be considered for postponement of its effective date for at least 60 days for further review and approval, which may include an additional public comment period
These delays are intended to allow time for the new administration to insert itself into ongoing rulemakings inherited from the Trump administration.
● Changing the paths of particular rulemakings, including terminating some and initiating others
In the coming months, President Biden’s appointees will remake their agencies’ regulatory agendas to conform with his priorities.
Undoing finalized rules
Options exist to undo finalized rules. The time to accomplish these reversals range from a few months to multiple years.
● Repealing recently-finalized rules
The Congressional Review Act gives Congress the power to pass a joint resolution “disapproving” – repealing – a recently-adopted rulemaking with Presidential approval. Congress can take this step if a rule has been finalized when the previous Congress had no more than 60 days left in session – this time that deadline is August 21, 2020. The new Congress then has 60 legislative days to pass disapproving resolutions (I discussed this process HERE). In 2017 the Republican-led Congress and President Trump disapproved 16 Obama administration rules; it remains to be seen if this process is used in 2021 by the very narrow Democratic majorities in both houses of Congress.
● Accepting petitions to reconsider rules or reopen proceedings
Most laws governing rulemakings (the generally-applicable Administrative Procedures Act and rulemaking provisions within some laws) give parties in a proceeding opportunities to petition the rulemaking agency to reconsider a specific regulatory determination or even to reopen a proceeding for broader review. The new administration could take this path, staying a determination by the last administration and moving to reach its own conclusions.
● Surrendering or settling pending lawsuits against finalized regulations
After an agency completes a rulemaking, the agency is often sued in federal court by opponents to the decision taken. The administration that enacted the rule typically ensures that the Department of Justice (DOJ) defends the rule in court. A subsequent administration can soften or even end that defense. One example of the Biden administration’s movement in this direction is a formal letter from the Environmental Protection Agency’s (EPA) Acting General Counsel Melissa Hoffer to DOJ asking DOJ to “seek and obtain abeyances or stays of proceedings in pending litigation seeking judicial review of any EPA regulation promulgated between January 20, 2017, and January 20, 2021, or seeking to establish a deadline for EPA to promulgate a regulation in connection with the subject of any such regulation, in order to provide an opportunity for new Agency leadership to review the underlying rule or matter.”
● Reopening rulemakings to review issues and perhaps reach different regulatory conclusions
Even without action by outside parties, agencies can initiate or reactivate rulemaking proceedings. Depending whether a rulemaking is already underway, this may happen at the ANPR, proposed, or final stage. Rulemakings can take years.
Securing legislative changes
The Biden administration can also seek to cooperate with Congress in the passage of new or revised legislation that meets their joint priorities. A host of legislative proposals have been developed in recent years, so options are numerous. However, legislation is typically an uncertain pathway, and is particularly so this year with the 50:50 split in the Senate. Also, once statutory provisions are enacted, they make require agency rulemakings to effectuate, adding additional time before results are secured.
What now?
As of this writing, the new administration is moving quickly on the fastest methods of replacing the prior administration’s rules and approaches. The experience of past revisionism following changes in administration suggests strongly that this process will continue throughout President Biden’s tenure.
Implementation Checklist
Is the organization subject to any federal regulations, policies or guidance?
If so, were any of these provisions adopted or revised during the Trump administration?
Has the incoming Biden administration identified any of these provisions for review, revision or replacement?
Where can I go for more information?
Information available via the Internet includes:
● White House website “Presidential Actions” webpage
● President Biden letter about rejoining Paris Agreement
● EPA letter to DOJ regarding pending litigation
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com