The swearing-in of Michael Regan as EPA Administrator means that open questions on policy, agenda-setting, and prioritization for the Agency will soon be answered. Issues that have risen to the top of the new EPA Administrator's priority list include environmental justice, including health outcomes impacted by the prevalence of per- and polyfluoroalkyl substances (PFAS); scientific integrity; new greenhouse gas limits for the electricity sector and automobiles; and a reconsideration of the flurry of EPA rulemakings issued in the late days of the Trump Administration.
Initial EPA Policies Targeted for Review
The process of reevaluating the Trump Administration's rules began on Inauguration Day, when the Biden Administration issued a non-exhaustive list of policies that federal agencies were directed to review, including 48 rules and guidance documents issued by EPA alone. The targeted policies covered a variety of topics covering air, climate, waste, water, and toxics, including (among others):
Late-Trump Era Rulemaking: Freeze!
Contemporaneously with issuing this list of policies, President Biden's Chief of Staff, Ronald Klain, issued a "Regulatory Freeze" memo, as is customary at the outset of an administration change, which requested the following steps from heads of executive departments and agencies:
Executive Order as Yardstick for Regulatory Review
EPA was also directed to review the listed policies for consistency with Biden's Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (EO), and to "take action" to address federal regulations and actions during the last four years that conflict with the EO objectives . Such action could include publishing for notice and comment proposed rules suspending, revising, or rescinding specified agency actions. Within 30 days of the EO, or by February 20, 2021, the EPA Administrator was directed to submit to the Director of the Office of Management and Budget (OMB) a preliminary list of any rules or policies being considered for further action by the end of this year, and within 90 days of the EO, or by April 20, 2021, the Administrator was to send an updated list of actions being considered that would be completed by December 31, 2025.
Rule Review in Practice: First Priorities Selected
Now that Administrator Regan has been sworn in, the policies and rules targeted for early action are coming into focus. On its website, EPA has provided notice that the following recent Trump-era rulemakings are either undergoing review or have already been reviewed under the Regulatory Freeze memo for consistency with the EO:
EPA's Approach for Future Change
It remains unclear how the new Administration will prioritize its review of the remaining targeted regulations. Some finalized rules may be rolled back or revised through litigation or by Congress' use of the Congressional Review Act, for rules issued during the last 60 legislative days of the previous Congress (on or after August 21, 2020). On March 17, 2021, EPA applied to the U.S. Court of Appeals for the District of Columbia Circuit, requesting that the court voluntarily remand and vacate a rule published in the Federal Register on January 13, 2021. This rule finalized a significant contribution finding for greenhouse gas emissions for electric generating units that also established a framework for assessing significant contributions for other industries. Many other regulatory changes are expected to occur through formal EPA notice and comment procedures.