It has been 50 days since Joseph R. Biden was sworn into office. His inauguration was soon followed by the swearing in of two Democratic Senators from Georgia with the result that, for the first time since 2010, there is a Democratic President and the Democrats hold the majority, albeit slight, in the House and the Senate. This creates an opportunity for President Biden to enact sweeping environmental reforms through executive orders, regulatory guidance, federal regulations and legislation to promote his initiatives, which primarily are focused on climate change and racial justice. Climate Change: A New Direction President Biden took immediate steps to promote his agenda on his first day in office, issuing an Executive Order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” and publishing a “List of Agency Actions for Review.” (See Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis | The White House and Fact Sheet: List of Agency Actions for Review | The White House). While the Executive Order addresses broader policy initiatives such as vehicle economy and emissions standards, methane emissions, and appliance and building efficiency standards, the list of Agency Actions to be reviewed identifies more than 100 regulations and executive actions issued by the Trump administration between January 20, 2017 and January 20, 2021 and includes 48 regulations issued by the Environmental Protection Agency. Following on the heels of these actions, the administration released another climate-driven Executive Order on January 27, 2021. (See Executive Order on Tackling the Climate Crisis at Home and Abroad | The White House). These Executive Orders demonstrate the Biden administration’s whole-of-government approach to climate policy, reducing climate impacts in every sector of government as well as address disparate impacts on communities. Executive Orders Demonstrate an Aggressive Environmental Agenda
While it is clear that the Biden administration is seeking fundamental changes to the Trump administration’s environmental policy and regulations, what is less clear is the pathway to get there. Even though the Trump administration executive orders and guidance documents may be readily reversed (and many, in fact, have been), the rollback of regulations is a more arduous process, most often requiring notice and comment rulemaking. Thus far, it appears that the Biden administration is taking the “kitchen-sink” approach and using every means possible to stop the Trump environmental agenda. This kitchen-sink approach may include using Congressional powers under the Congressional Review Act Congressional Review Act – Too Many Priorities, Too Little Time, regulatory freeze of regulations that are not yet final, and delaying litigation of current challenges to regulations Frozen! Delayed! Biden Administration to Review Environmental Regulations. However, it is anticipated that the rollback of many of the Trump-era administrative regulations will require notice and comment rulemaking – the traditional administrative process that takes a minimum of 18 months, assuming no significant litigation. If significant challenges arise, it could take several years for a regulation to be repealed and replaced.
While the outcome of these efforts is unclear at this time, it is clear that the regulatory train is moving quickly down the tracks to reverse the Trump administration’s environmental initiatives and rollbacks. It is imperative for those subject to EPA regulations to stay abreast of changes impacting their industry and to make their voices heard early in the regulatory process.
