Incoming President Trump and the Republican majorities in Congress have begun sweeping plans to reverse many of the outgoing Biden Administration’s environmental policies. The timing and practicality of these reversals depends very much on each of the targeted activity’s legal form – law, regulation, Executive Order (EO), or guidance document. They also depend on where each particular target is in the governmental process: a non-binding policy, a proposed regulation subject, a final regulation subject to administrative appeals or court attacks, and a final regulation. President Trump has taken early executive action under each of these sets of situations. I will write about some separately, but the remainder of this note summarizes each general type of situation, with examples of each set out in order ranging from quickest/easiest to most time consuming/difficult.
Actions with immediate effect
-
Revoking/Replacing Executive Orders
Traditionally, most presidential EOs apply explicit authority under Congressionally-enacted laws to direct federal agencies in how to administer laws as regulators, comply with laws as regulated entities, or conduct planning and inter-agency cooperative activities. Within this framework, incoming Presidents frequently revise or repeal their predecessor’s EOs, in order to impose their own priorities – akin to appointing their own cabinet secretaries and senior administrative personnel.
Recently, 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. President Biden 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 his Regulatory Reform EO 13777 (HERE) and restrictions on agency guidance documents EO 13891 (which I’d written about HERE). President Trump is doing even more, beginning with EO 14148 (1/20/25) “Initial Rescissions of Harmful Executive Orders and Actions,” which identifies and revokes 78 Biden EOs. I’ll write more about these in my next note.
-
Re-leaving the Paris Agreement
In December 2015, the US was a pivotal negotiator 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 as soon as possible (November 4, 2020) (see HERE). On January 20, 2021 incoming President Biden formally re-joined the US to the Agreement. On January 20, 2025, President Trump’s EO 14162 “Putting America First in International Environmental Agreements” including directions to formally withdraw again.
-
Memoranda to agencies
In their role as the head of the federal bureaucracy, Presidents and their high-ranking subordinates also issue directives to agencies. On January 20, 2025 President Trump issued a Memorandum for the Heads of Executive Departments and Agencies “Regulatory Freeze Pending Review” directing every agency not to issue any new proposal or final rule until a Trump-appointed official has reviewed them, to withdraw any proposed or final rule already sent for publication in the Federal Register but still pending publication, and to “consider” postponing the effective date of any final rule that has been published but is not yet effective.
-
Changing regulatory 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, President Biden issued EO 13992 on his first day in office repealing several of President Trump’s regulatory policy orders (EO 13891) – President Trump repealed that Biden EO on his first day (EO 14148).
-
Changing the paths of pending rulemakings, including terminating some and initiating others
In the coming months, President Trump’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. 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. I’m fairly certain this will happen again in 2025, but haven’t yet seen specific proposals.
-
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 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. The new Trump agency heads have begun to use this option.
-
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 Trump 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 narrow Republican majorities in the Senate and House of Representatives. Also, once statutory provisions are enacted, they may 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 Trump’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 Biden 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:
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