During the 2016 campaign, Candidate Trump made one priority clear and that would be deregulating federal agencies should he win the presidency. In particular, Candidate Trump stated the United States Environmental Protection Agency (U.S. EPA) was at the top of his list for deregulation. Once in office, President Trump proposed to cut the U.S. EPA by 31 percent, lay off 25 percent of the employees, and eliminate 56 programs. He also signed an executive order to repeal most of President Obama’s rules and policies related to climate change.
In stark contrast, during the 2020 campaign, Candidate Biden made it clear he intended to reverse President Trump’s deregulation policy and to focus on climate change and environmental justice. Immediately after being sworn into office, President Biden signed several executive orders that withdrew a series of the Trump Administration’s executive orders—a similar action that President Trump did once sworn into office in 2017. But, this is the only thing that the two Presidents have in common when it comes to implementing their environmental policies.
In his first executive order addressing environmental regulation, the Biden Administration outlined its policy:
Our Nation has an abiding commitment to empower our workers and communities; promote and protect our public health and the environment; and conserve our national treasures and monuments, places that secure our national memory. Where the Federal Government has failed to meet that commitment in the past, it must advance environmental justice. In carrying out this charge, the Federal Government must be guided by the best science and be protected by processes that ensure the integrity of Federal decision-making. It is, therefore, the policy of my administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.
The executive order further stated that the administration would conduct an immediate review of agency actions taken between January 20, 2017 and January 20, 2021. Further, in a letter from the U.S. EPA Acting General Counsel, President Biden requested a review of pending regulations by the new administration. Likewise, the Biden Administration asked the Department of Justice (DOJ) to stay litigation challenging the Agency’s rules.
These actions are not uncommon for a new administration from opposing parties. Like the Trump Administration, the Biden Administration began to implement its environmental policy via executive orders. However, unlike President Trump, President Biden has also issued far more U.S. EPA Federal Register filings in the first month of his administration (Figure 1). Unlike the Trump Administration, this signals that the Biden Administration will take an aggressive approach to environmental regulation and enforcement.
Figure 1. EPA Federal Register filings during the first 30 days of the past five administrations.
Regulations to be Reviewed, Revised, or Rescinded; Delayed Effective or Implementation Dates for Regulations.
Like the Trump Administration, the Biden Administration has already identified regulations that it intends to immediately review and possibly revise or rescind. These include:
EPA Science, Litigation, and Regulatory Review
This review concerns many industry stakeholders that based their business decisions on the industry-friendly Trump Administration.
Rescinded Executive Orders, Presidential Memorandum, Presidential Reports, Guidance, and Technical Reports.
In the first six months of the Trump Administration, President Trump signed a series of executive orders rescinding the Obama Administration’s executive orders, Presidential Memorandum, Presidential Reports, and U.S. EPA Guidance and Technical Reports. Most of these focused on President Obama’s climate change policy. It is expected that President Biden will take similar actions.
The Supreme Court and the Biden Administration
On January 19, 2021, the U.S. Circuit Court of Appeals for the D.C. Circuit issued a decision that vacated the Trump Administration’s Affordable Clean Energy Rule, which the Trump Administration promulgated after repealing and replacing the Obama Administration’s Clean Power Plan – a plan intended to combat climate change. The vacatur appears as a win for the Biden Administration, which is making climate change a major environmental policy, allowing U.S. EPA to promulgate more stringent rules. However, there is an unknown factor – the new Supreme Court. If there is a petition to the Supreme Court to review the D.C. Circuit’s opinion and it is granted, the rule’s vacatur will be before a conservative majority that includes three Trump-appointed justices.
However, it cannot be assumed that the Supreme Court will be deferential to the Trump’s Administration’s Affordable Clean Energy (ACE) rule. The case, Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) that shaped courts’ deference to Agency actions (such as promulgating regulations), has been increasingly under attack primarily by conservative judges. Following the strict interpretation of law that the late Justice Scalia took, both Justice Gorsuch and Justice Kavanaugh have written opinions challenging Agency deference. While Justice Coney Barret has not issued any significant administrative law opinions, she is a textualist that stresses the importance of interpreting constitutional and statutory provisions consistent with the original meaning of their text.
This does not bode well for the Biden Administration and its aggressive environmental policy. There is a good chance that the Supreme Court will hear challenges to his regulations and may see the Supreme Court limit Agency deference. Thus, the Biden Administration may face a difficult time pushing his environmental policies forward.
Although the Biden Administration has only been in office for a little more than a month, his aggressive approach to environmental policy is clear. While hailed by environmentalist and non-governmental organizations, industry is facing uncertainty of how a radical change from regulation under the Trump Administration to regulation under President Biden will impact business decisions. This uncertainty is compounded by President Trump’s appointment of conservative judges that seek the opportunity to limit Agency deference. Thus, while the Biden Administration hopes to make environmental policies a priority, he could face challenges that limit his ability to regulate.
 “Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” https://www.epa.gov/environmentaljustice, last visited February 5, 2021.
 Executive Order, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (January 20, 2021).
 Correspondence from Melissa A. Hoffer, Acting U.S. EPA General Counsel, to Jean E. Williams and Bruce S. Gelber, Deputy Assistant Attorneys General, Environment and Natural Resources Division, U.S. Department of Justice (January 21, 2021).
 This does not include additional rules that could impact the environment that the Secretary of the Interior must reconsider, revise, or rescind.