Biden EPA Hits the Ground Running with Reviews of Trump Air-Related Rules

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Troutman Pepper

[co-author: Emily Guillaume]

On January 20, newly inaugurated President Joe Biden signed an executive order titled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” initiating review of nearly 50 environmental rules and regulations, including 20 air-related regulations that the new administration views as insufficient or unsupported by the data.

Notable rules up for immediate review include standards for greenhouse gas emissions from power plants, airplanes, oil and gas operations, and landfills; National Ambient Air Quality Standards for ozone and fine particulate matter; and the supplemental cost finding and risk review for the Mercury and Air Toxics Standards. The incoming EPA also plans to review a memorandum drafted by the outgoing administration that addressed provisions governing periods of startup, shutdown, and malfunctions in state implementation plans. The new EPA is also expected to review broader rules that it alleges will hamper the agency’s ability to use the best available data to make its regulatory determinations, including the controversial “Secret Science ” and “Cost Benefit Analysis” rules.

The order is consistent with the memorandum issued by Chief of Staff Ron Klain on January 16, which stated that the president’s policy will be to “address the climate crisis with the urgency the science demands and ensure that science guides the administration’s decision making,” and named climate change as one of the “four overlapping and compounding crises” facing the United States.

The flurry of reviews is also consistent with a memorandum announcing a policy of “Regulatory Freeze Pending Review” issued January 20, which directs the heads of executive departments and agencies to consider postponing effective dates for 60 days for rules that have not yet taken effect, as well as consider opening a 30-day comment period to ascertain issues of “fact, law and policy raised by those rules.” The memo also explicitly states that certain, identified actions “that were undertaken before noon on January 20, 2021, to frustrate the purpose underlying this memorandum” may be subject to further scrutiny.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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