Biden Faces Moral Imperative to Advance Climate Regulations
Trump's "abysmal" record of deregulation leaves clues behind for policymakers
From the beginning of his presidency, Donald Trump wasted no time establishing a deregulatory agenda as one of the top priorities for his administration. Just 10 days after taking office, he signed an executive order requiring that two federal regulations be rescinded for every new regulation implemented. “The American dream is back,” he said in a statement from the Roosevelt Room.
In the years that followed, it became clear who was to benefit, and who was to lose, from Trump’s American dream.
His administration has rescinded, rewritten, or replaced over 100 environmental protections, rules, and regulations that reduce toxic pollution and industrial waste, protect endangered species, and draw down the greenhouse gas emissions that are accelerating a global climate crisis. His political appointees have sought to weaken the democratic process by which everyday people can be heard when federal agencies are considering whether to approve a potentially harmful infrastructure project like a pipeline or chemical plant near their communities. From undermining the nation’s bedrock environmental laws such as the National Environmental Policy Act (NEPA), rolling back fuel efficiency standards for cars and trucks, and abolishing and replacing the Clean Power Plan, Trump’s dream turned out to be of a sicker, dirtier, less democratic America in which corporate interests win out against the people’s interests, and those of a cleaner, more sustainable climate.
The deregulatory era of the past four years amounts to an unprecedented stress test of the nation’s environmental rules and regulations and, in some cases, exposed how vulnerabilities in the way those rules were crafted or finalized can be used to weaken or rewrite them. Climate-minded policymakers can now study those vulnerabilities, and the often sloppy way Trump officials tried to take advantage of them, to restore and strengthen the nation’s environmental protections in order to make them more ambitious, more durable, and more partisan-proof.
“What happened under the Trump administration exposed all of the ways that interpretations of these statutes could be pushed to extremes. The Biden administration can learn from that,” Caitlin McCoy, a staff attorney at the Environmental and Energy Law Program at Harvard University, told Sierra. “It’s not just about putting things back together or returning to the status quo. We need to strengthen regulations, because the climate crisis has accelerated dramatically over the last four years, and we have failed to take action on a federal level. This is an incredible opportunity to think creatively about how we can insulate these rules and regulations from future changes.”
About 85 percent of the Trump administration’s deregulatory actions over the past four years were struck down by the courts. “It was an abysmal record, and it was an abysmal record in large part because the analysis underlying their actions was so shoddy,” said Richard Revesz, the Lawrence King Professor of Law and Dean Emeritus at New York University School of Law, where he directs the Institute for Policy Integrity. He is the author of Struggling for Air: Power Plants and the “War on Coal.”
Revesz points out that regulatory action tends to be more durable if it’s undertaken in the first term of a two-term administration—all the more reason why Biden must take swift action in his first year in office to put the nation on an even more aggressive path for climate action.
“We’re all focused on the fact that in some sense the Clean Power Plan didn’t stick. The clean car standards also didn’t stick; they were both undone by the Trump administration,” he says. “But we should keep in mind that these were both second-term actions by the Obama administration. If you look at the significant environmental actions under Obama, the ones that did stick were completed in his first term, and some really important ones.” Revesz cites the cross-state air pollution rule, also known as the good neighbor provision of the Clean Air Act, as one example. “It takes a long time to do the regulatory process, to get a rule ready to be proposed, to go through the comment period, to promulgate the rule. And inevitably, there’s litigation, and that takes time as well.”
Revesz says that the Biden administration has to include robust analysis in its rulemaking so it can withstand legal scrutiny, and do it relatively quickly. “The goal here is not to return to the status quo of the Obama administration. The Obama administration moved the needle on climate significantly at that time. But now we need to make up for these last four years, the accelerating climate crisis, and the very damaging actions of the Trump administration.”
The options available for doing that, according to McCoy, depend not only on whether there has been litigation (there has been on almost every major environmental rollback under the Trump administration) but also whether that litigation has ended. Or how it’s been decided in the interim by lower courts.
“Each rule is slightly different in the sense that, is it a final rule, how far along has it progressed in litigation, is it just proposed?” she says. “That will guide whether it’s sufficient for the Biden administration to just repeal or rescind one of the rules the Trump administration has put forward, or whether they will also need to couple that with a brand-new replacement rule. That obviously takes time.”
McCoy developed an analysis with Cole Jermyn, a third-year law student at Harvard Law School, and HLS fellow Laura Bloomer, that examines the legal geography for an incoming Biden administration. The analysis amounts to a guide of legal pathways Biden could take to undo Trump’s rollbacks, and in some cases strengthen environmental rules and regulations.
“Over the past four years, the Trump administration has taken some risks in how they have promulgated rules and gone on the side of speed in trying to complete regulations as quickly as possible and get them on the books. But that has made them more vulnerable to legal challenges,” Jermyn told Sierra. “If a Biden administration is coming in and doesn’t want to make the same mistake, they need to be sure to take the time to go through the full notice and comment period, to have a complete record of the scientific information they are relying on, the regulatory history, if there are any reliant interests from industry, and documenting all that in the record.”
An incoming administration could theoretically work with Congress via the Congressional Review Act (CRA) to quickly remove or revoke some regulations (as the Trump administration did when it came to power). When an agency finalizes a regulation and publishes it in the federal register, it has to send a report to Congress on the final rule. Lawmakers then have 60 legislative days to pass a CRA resolution of disapproval in the House of Representatives and the Senate saying that Congress disapproves of this regulation and it is now null and void. In some current cases, such as the proposed weakening of NEPA or the Endangered Species Act, a CRA review would work according to that timeline—but only if the Democratic Party can muster a majority in the Senate to pass a CRA resolution (the outcome of the Georgia Senate run-offs will determine the fate of that option).
Or, instead, the Biden administration could go to court to request an abeyance, or pause, in the ongoing litigation of proposed Trump rules. Then policymakers could work on a replacement that takes into account how the Trump administration rolled back the original rule, and what made it vulnerable to that rollback.
The Trump administration’s approach to weakening the nation’s clean car and fuel economy standards is one example. The proposal, released in September 2019, offered a novel interpretation of the Clean Air Act’s Section 209 provision, which provides California a waiver to set its own Corporate Average Fuel Economy (CAFE) standards. The Trump administration posited that the National Highway Traffic Safety Administration (NHTSA) can preempt California’s waiver and EPA also revoked it under its new legal interpretation.
According to the Trump administration’s own analysis, their proposed replacement of the fuel economy standards would lead to 900 million more tons of carbon dioxide and contribute to thousands more premature deaths and asthma attacks compared with the Obama standards—an outcome that EPA administrator Andrew Wheeler described as "the right regulatory balance that protects our environment and sets reasonable targets for the auto industry.”
The case is one of the most egregious examples of how badly the Trump administration tried to torpedo the nation’s environmental and public health protections, according to Revesz.
“The justification for the proposed rule was beyond terrible,” he says. “It was riddled with arithmetic errors. It violated the first precept of economics, which is that if something is more expensive, people will buy less of it, and it assumed that because the Obama standards made cars more expensive then people would buy more cars.”
The EPA under Biden could just rescind this new interpretation of Section 209. Or, according to McCoy, it could craft a new rule that formally announces that NHTSA should not be in a position to preempt California’s greenhouse gas standards. Even more, it could increase the ambition of the CAFE standards to comply with a more aggressive climate-action agenda.
Procedural details around regulation and government policy like these can seem convoluted. But to advance an effective climate movement, they matter: A robust set of environmental rules and regulations that protect clean air and water and draw down fossil fuel emissions from the nation's transportation, agriculture, and power sectors are crucial tools in the fight to slow down and eventually stop the climate crisis threatening our planet.
“Not only can the Biden administration strengthen the nation’s environmental protections after Trump, they have to,” Nathaniel Schoaff, senior attorney for the Sierra Club's Environmental Law Program, told Sierra. “The progress that was made under President Obama in terms of protecting clean air, clean water, protecting the climate, is no longer sufficient. We know from the best climate scientists on the planet that our window to effectively address climate change is rapidly shrinking. That window is now four years shorter than it should have been thanks to Trump. The pace and the scale of meaningful action has to be ramped up.”
Another way to do that is by ending the practice of leasing public lands to fossil fuel companies. Trump neutralized an Obama-era moratorium on coal leasing on public lands. The Biden administration will surely look to rescind that rollback and restore the mortarium on federal coal leasing. Schoaff argues that Biden should do more than just restore the moratorium and expand it to also include oil and gas leasing on public lands.
“It has to be a moratorium on all federal fossil fuel leasing and apply not just onshore but offshore,” Schoaff says. “That’s an example of where the Obama administration put one policy in place, the Trump administration rolled it back, and Biden has a moral imperative to go further than Obama.”
To be successful, the Biden administration will need to avoid some of the sloppy mistakes made by its predecessor in how it complies with the Administrative Procedure Act (APA)—a process-oriented law that underlies how regulations are constructed and finalized. The APA covers whether federal agency actions in rulemaking are arbitrary and capricious. In the process of rescinding and replacing proposed Trump rules, Biden policymakers will want to ensure they are complying with the APA and meeting all of its requirements for notice and comment. In dozens of legal defeats over the past four years, courts found that the Trump administration failed to follow even the most basic rules in its attempts to change policies on the environment and other issues, and of those defeats, many judges found the administration violated the Administrative Procedure Act.
Perhaps the most significant action Biden will want to take early on will be addressing the Trump administration’s so-called Affordable Clean Energy rule, which replaced the Clean Power Plan—a first-ever set of federal rules limiting carbon pollution from existing coal- and gas-fired power plants. The Clean Power Plan was the Obama administration’s signature proposal for greening the nation’s power grid. Biden has pledged to rejoin the Paris Agreement on day one of his administration, and he will need a robust set of policy solutions aimed at combating climate change to meet the United States’ emissions reductions targets under the agreement.
“The electricity sector has to be a top priority. The prospects for addressing climate change are in electrification,” Kathy Fallon Lambert, senior adviser at the Center for Climate, Health and the Global Environment at Harvard University, told Sierra. “We need to green the grid. Electrifying transportation, electrifying buildings, using heat pump technology, all of that could generate huge greenhouse gas emissions reductions if it’s tied into a green grid.”
Unlike the Clean Power Plan, Trump’s Affordable Clean Energy rule does not have any targets for emissions reductions. It just gives states a menu of heat-rate improvement technologies for running those plants more efficiently. According to the EPA's own analysis, the Affordable Clean Energy rule, if enacted, will make air quality worse, not better, and have a detrimental, not beneficial, impact on public health. The Clean Power Plan was estimated to help prevent approximately 90,000 asthma attacks and 3,200 premature deaths per year tied to coal plant emissions; those health co-benefits and lives saved would be lost as a result of Trump's rollback.
Judge Justin Walker of the DC Circuit court overseeing the litigation referred to the Affordable Clean Energy rule as “a standardless standard by design.”
We need to green the grid."
More than two dozen cities and states, plus a host of environmental organizations including the Sierra Club, sued the EPA in 2019 to block the Affordable Clean Energy rule from going into effect. Of the many court cases involving Trump administration environmental rollbacks, the litigation around it is one of the few that has progressed to the point where the DC Circuit could make a decision soon. In response, Biden could issue an executive order instructing the EPA to review the Affordable Clean Energy rule and consider rescinding it, after which the Department of Justice could either use that executive order or a notice of intent in court to pause the litigation. The EPA could then replace the Affordable Clean Energy rule with a new rule that actually does make air quality better and have a beneficial impact on public health—a Clean Power Plan 2.0 that is stronger than the first.
Lambert and a team of researchers recently completed an analysis looking at 10 different electricity sector policies and compared their economic costs against their climate and health benefits. They included the Affordable Clean Energy rule and an updated Clean Power Plan that doubles the emissions reductions targets from the original plan. They found that it is possible with existing technology to implement a 100 percent clean energy standard by 2040, and that the cost of doing it would be modest—about 15 percent above having no policy at all. The climate and health benefits of a policy like that far exceed the costs: The net benefits from 2020 to 2050 would be $350 billion to as much as $600 billion.
In the case of repairing NEPA, McCoy says, the situation will be more straightforward. The NEPA rollback essentially gives federal agencies a free pass on whether to consider the greenhouse gas impacts of a government’s actions. A Biden administration could direct the White House Council on Environmental Quality to rescind the new NEPA regulations finalized this past July and publish the action in the federal register to comply with the Administrative Procedure Act. That would return the country to the pre-Trump status quo of NEPA regulations. The administration could then move to create new, even stronger NEPA implementing regulations that this time would be designed to expedite renewable energy projects.
Trump created a kind of government laboratory for experimenting with how to destroy environmental protections and bake climate denialism into federal rulemaking. Biden will need to act quickly to bring those experiments to an end, and to build back the nation’s environmental protections better than they were before.
“Over the last four years, we’ve learned that our system is somewhat resilient to lawlessness,” Revesz says. “The Trump administration took all these actions, and the courts struck most of them down. That doesn’t mean that everything’s OK. The goal for our society is not in keeping in place forever the regulatory status quo that existed at the end of the Obama administration. We need to keep moving forward after four wasted years.”