Here's the Deal: Predicting the Path of Biden Regulatory Policy

Davis Wright Tremaine LLP
Contact

Davis Wright Tremaine LLP

During the prior administration, it was fairly simple to anticipate the path the federal government would take in the area of environmental regulation: 1) If a regulation had been proposed or implemented by the Obama administration, it was to be revised or dropped; 2) Any regulatory change that lessened restrictions on resource development was to be promulgated; 3) All of this would happen quickly and in a way that could be charitably characterized as ham-handed, with minimal effort to comply with the Administrative Procedure Act (APA).

The result was also predictable. Essentially every regulatory action taken in the environmental area was immediately challenged in court by environmental groups, blue state attorneys general, or both. And the administration set an unenviable record for losses in court based largely on failure to comply with the APA.

Even though it was expected that a Democratic administration would have much more experienced staff in place, most observers viewed it as likely that the next four years could be just a replay of the past four. Regulations were expected to be pulled back, revised or issued, followed by years of litigation. However, perhaps reflecting that difference in experience, the first few months of the new administration suggest the course of the next four years may be less litigation-driven than anticipated.

What's Different in the Biden Administration

In general, the Biden administration has taken a more nuanced approach than wholesale rejection of the Trump administration's efforts. For example, it has not used the Congressional Review Act, by which regulations promulgated late in an administration can be rejected by a simple majority of the House and Senate. Republicans used that approach in 2017 to eliminate several Obama regulations, without requiring any agency action. The Biden administration has not gone that route, presumably in part because use of the CRA would then preclude the administration from offering a substitute regulation in the same area, and because its slim majorities in the House and Senate have been preoccupied with other matters.

Another reason is that the courts had already blocked many Trump regulations. Even where the courts have yet to rule, the administration has requested that the court remand challenged regulations to the agency to address what the agency acknowledges may have been procedural errors in the original process. On remand, the new administration may be able to reverse or adjust course without the extensive notice and comment required to repeal and replace.

The administration has also identified approaches that may ameliorate the Trump approach until the offensive regulation can be addressed directly. For example, the Trump administration sought to bar the use of "indirect benefits" in calculating the cost/benefit of new regulations. The Biden administration is still deciding how to approach that. However, in the interim, it has re-introduced the "cost of carbon" value used in the Obama administration, which may serve to result in cost/benefit calculations adequate to defend most new regulations.

Charting a Course Outside the Courts

It may also be that regardless of the strength of the government's position on the Trump version, the agencies may also determine that there are solutions to some of these matters that can be reached through negotiation rather than litigation. The regulated community may also feel that their interests will be better served by moving the dispute out of the judicial arena and into the bureaucracy. Environmental plaintiffs, however, may be happier with the matter being decided by a court, rather than in a political context. This can produce unusual alignments, as with the environmental groups demanding swift action on their challenges to the Trump Clean Water Act Rule, while the federal government is seeking stays. The dispute over auto mileage standards is another area where this dynamic appears to be occurring, with auto companies dropping out of litigation against the US and joining discussions with the State of California, and plaintiffs opposing a stay of litigation sought by the federal government.

Notably, all of this is taking place in an atmosphere of greatly heightened concern over climate change and environmental justice. No one wants to take a position in court that makes the agency or the industry appear to be indifferent to catastrophic weather changes or minimizes the value of avoiding human health impacts, including that from air pollution or from elevated lead in urban water systems.

Taking a Measured Approach

The upshot is that there has not been a knee-jerk, opposition approach by any of the relevant parties, including on hot-button issues. The administration, which blocked the Keystone Pipeline in one of its initial actions, has also supported the Penn East pipeline now before the Supreme Court. And for what it is worth, the new administrator at the Environmental Protection Agency has proclaimed his support for the continuation of cooperative federalism. That has been the EPA's position for years, but the statement and the fact that the administrator is a former state environmental official suggests he does not intend for the EPA to simply issue direction from on high to the states.

Bottom line, it is still early, but the administration appears to be taking a measured approach to addressing the actual environmental problems and is not focused simply on undoing the work of the Trump administration. The new administration has a lot on its plate. Unlike its predecessor, it is putting in place experienced litigators and managers, the sort who have demonstrated an ability to work with both sides to resolve difficult issues that present an interplay between environmental and economic impacts.

There are still many ideologues out there on both sides who will be ready to litigate every issue. But for those who are focused on solutions that address real issues and allow them to run a successful business, rather than on headlines or a speaking opportunity at the next annual meeting of their favorite non-profit, this is the time to assess deeply the costs and benefits of proposals—not simply the "gotcha" potential—and to identify those with whom real conversations can be held.

[View source.]

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.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP
Contact
more
less

Davis Wright Tremaine LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.