How Biden beat the clock on big environmental legislation

President Joe Biden’s regulators recently finalized a flurry of major energy and environmental regulations, hoping they will stick even if Donald Trump returns to the White House.

In recent months, rulemakers across the federal government have rushed to finalize sweeping new regulations – from critically important power plant regulations addressing climate pollution to policies regulating the protection of public lands.

The push to end some of Biden’s biggest green policies is aimed at securing policy consequences if Republicans take the White House and gain on Capitol Hill in this year’s elections.

In 2017, former President Donald Trump and his allies used a rarely invoked law to relax more than a dozen Obama administration rules. Biden’s team wants to make sure this doesn’t happen again, as Trump promised during the campaign to torpedo recent climate and energy policies, even suggesting he would fire the Interior Department and other environmental agencies if the White House reverses this election .

The bill, known as the Congressional Review Act, or CRA, would allow GOP lawmakers and the Trump White House to unravel regulations finalized in the last 60 legislative days of the preceding session of Congress, essentially giving Biden’s opponents veto power over those later regulations.

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

“We were all in on this,” Vicki Arroyo, head of EPA’s strategic office, told POLITICO’s E&E News about the sprint to finalize key regulations earlier this year. “We were all on the same team trying to really meet these priority policies for the administration so that we can ultimately protect human health and the environment, which is our mission.”

CRA’s deadline for the bill’s “look-back period” to begin is unclear, although some observers believe it will be May 22, based on the House calendar, when Congress will adjourn for the year.

But James Goodwin, policy director at the Center for Progressive Reform, a liberal regulatory think tank, said the congressional schedule is difficult to predict. If lawmakers add more business days to pass key legislation such as appropriations measures and the Farm Bill, it could lead to “the practical effect of pushing the lookback deadline all the way back to July,” he said.

“I don’t think it would be beyond the realm of possibility,” Goodwin said.

“Conscious CRA Window”

The administration and its allies watched the calendar closely. “Obviously, everyone in the city who follows these cases is aware of the CRA window,” Arroyo said. “Depending on what trade press article you’re reviewing or who you’re listening to,” the deadline could be by the end of May or could extend into June, she said.

Arroyo, however, said there was not “the brass ring that we were looking for” that would have allowed the regulations to be finalized by the deadline. The policies had to be “robust and defensible” and “it took as long as it did.”

Arroyo joked that she had heard that Richard Revesz – the administrator of the White House Office of Information and Regulatory Affairs, which reviews federal regulations – might have wanted his birthday in early May to be the deadline for finalizing the regulations.

Agency officials “of course tried to work as hard as they could,” she said, but they needed to be shaken up a bit “because you can’t push through everything at once.”

A spokesman for the White House Office of Regulatory Affairs declined to comment when contacted for this story.

Goodwin emphasized that major regulations take time because they require public comment as well as agency and White House review, and added that large and complex rulemakings could take three to four years.

“Maybe they’re in a little bit of a hurry at the end, or they’re working more diligently, looking at the calendar,” Goodwin said. “But I feel like most of them realize that a lot of hard work has gone into them and they are ready for prime time.”

Paul Billings, senior vice president for national public policy for the American Lung Association, said he was “skeptical” when reviewing the administration’s list of regulatory tasks for this year.

However, summing up the administration’s work so far this year, “overall, we are very pleased with the policies it has introduced,” he said.

He said Biden’s team receives “high marks for doing this job.” As someone who “wasn’t optimistic in 2023 that they would get all these rules in place, they really should be applauded for putting the rules in place.”

Wayne Crews, a regulatory research fellow at the Competitive Enterprise Institute, a free-market think tank, said the Biden administration “can breathe a sigh of relief there” by issuing a few regulations that appear safe under next year’s Congressional Review Act.

“The rules that are currently out of date,” Crews said, citing late May and early June, “are below the hurdle.”

Under the gun

The Biden administration finalized some of the most important regulations in the weeks leading up to the potential date of the CRA’s look-back period.

The law requires agencies to submit final regulations to both houses of Congress and the Government Accountability Office before the regulations take effect. These regulations are published in Federal Register At the same time.

The clock is starting to tick. Lawmakers have 60 legislative days to introduce a CRA resolution to repeal the rule after it is received by Congress. If the resolution is adopted, the president will have to sign a law that invalidates the regulation.

Agencies have hit milestones on some of Biden’s most consequential regulations, which should protect them from a 2025 retrospective.

In late April, the EPA released a long-awaited climate rule for power plants, setting limits on greenhouse gas emissions from future gas-fired power plants and existing coal-fired units. This recipe was published in Federal Register May 9.

Also on the same day in April, the EPA introduced regulations setting limits on mercury emissions for power plants, combating hazardous coal waste near aging and former power plants, and limiting the release of toxic heavy metals from coal-fired power plants into waterways. These regulations were published on May 7, 8 and 9, respectively.

In March, the Biden EPA finalized another flagship climate rule aimed at reducing greenhouse gas emissions from passenger cars and light trucks. This regulation was published on April 18.

After repeated delays, the agency introduced closely monitored limits in February aimed at reducing exposure to fine particulate matter, more commonly known as black carbon, in the air. This recipe was published on March 6 in Federal Register.

This spring, EPA also took a historic step by establishing drinking water standards for certain members of the forever chemical family known as per- and polyfluoroalkyl substances, or PFAS. The final rule was printed on April 26.

Additionally, that same month, the agency also designated two of these chemicals, PFOA and PFOS, as hazardous wastes under the Superfund Act. The regulation was later published on May 8.

Regulators at the Department of Home Affairs have also been busy. The Bureau of Land Management finalized a conservation rule in April – which was published on May 9 – aimed at protecting natural spaces and restoring land in the face of a warming climate.

The Department of Energy has also been busy. The Department has introduced regulations tightening energy efficiency requirements for domestic water heaters. It was published in Federal Register May 6.

In late April, the White House Council on Environmental Quality finalized changes to provisions of the National Environmental Policy Act that aim to overhaul the nation’s fundamental environmental law in line with the administration’s push to produce clean energy and combat climate change. The regulations were published on May 1.

As the administration finalizes the regulations, the president’s critics continue to push for their repeal.

Lawsuits have already flown from GOP state attorneys general and industry groups challenging many of the rules in court. Republican lawmakers on Capitol Hill have introduced CRA resolutions also aimed at repealing several provisions, although they are unlikely to pass the Democratic-controlled Senate and be vetoed by Biden.

But if Trump and GOP allies get the chance next year, they will use the Congressional Review Act to cut rules again from the previous Democratic administration.

“If Trump were to come back into office, you can be sure that another dozen regulations will be repealed under the CRA next year, among other attempts, to start with,” Crews said.