Federal agencies scramble to finish Biden’s rules — and protect his legacy from Trump

President Joe Biden’s allies are getting antsy about his administration’s pileup of unfinished environmental rules — especially with the threat that a second Trump presidency could undo them all.

Biden’s agencies are facing a deadline this spring to finish some of their most important regulations to ensure that a Republican Congress and White House can’t erase them next year, including a crackdown on power plants’ climate pollution, protections for endangered species and a bid to protect federal employees from politically motivated firings.

Complicating matters is the fact that the deadline won’t be known until months after rules are completed.

Advocates of tougher environmental regulations watched as then-President Donald Trump used a previously seldom-invoked statute to unwind more than a dozen of the Obama administration’s rules in the opening months of 2017. They don’t want that to happen again.

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The scramble to finish the regulations is crucial to determining how much of Biden’s ambitious legacy may survive past the November election, as the two likely nominees promote sharply contrasting views on climate change, green energy and the power of federal agencies.

The Biden administration has promised action on a lot of fronts, and how soon it rolls those rules out could determine how easy they are for a future administration to unravel. Policy insiders and Biden administration allies are urging agencies’ rule writers to keep their eye on the clock.

“I am acutely aware of the calendar, and I’m checking on status regularly,” said Paul Billings, the national senior vice president for public policy at the American Lung Association. “In a month, my hair may be on fire.”

Lisa Frank, who leads the Washington legislative office at the advocacy group Environment America, said she’s feeling “anxious excitement” over the raft of expected rules.

“The Biden administration is poised to deliver some of the biggest gains on clean air, clean water and safeguarding nature that we’ve seen in years,” Frank said. That’s on top of “the most significant progress by a very long shot” in addressing climate change.

“Obviously, there’s still a lot of work to do to make all that progress,” she said.

James Goodwin, a senior policy analyst at the liberal-leaning Center for Progressive Reform, said there is no reason agencies cannot get their rules done at this point in Biden’s term.

“They know this stuff cold,” Goodwin said. “There are no impediments. It’s pedal to the metal time.”

‘The sooner the better’

Looming large over the administration’s rule-writing this year: the prospect of a second Trump administration.

During his first term, Trump shocked environmental advocates and former Obama administration officials — many of whom had been banking on a Hillary Clinton presidency — when he and the GOP-controlled Congress used the 1996 Congressional Review Act to trash more than a dozen Obama-era rules. Before Trump’s presidency, lawmakers had used the once-obscure law only once, to roll back a single rule from the Clinton administration.

The law allows Congress to overturn agency rules within 60 congressional session days of when a regulation is finalized and sent to the Capitol. But Congress’ schedule can be hard to predict, and it’s not yet clear when the deadline for shielding rules will be.

The lesson from Trump’s use of the CRA “certainly has sharpened the focus to be as conservative as possible in terms of estimating when it could possibly be,” said Matthew Davis, legislative director at the League of Conservation Voters.

Experts think the deadline could be this spring — possibly in May or June — but the regulatory process is complex, involving steps like White House review and getting rules printed in the Federal Register. There’s also a threat of another government shutdown that would force the agencies to stop working. So advocates don’t want to take any chances.

“The sooner the better,” Frank said. “We’ve been encouraging the Biden administration to get many of these done by Earth Day” on April 22, she added, both for the symbolism and to ensure that they aren’t susceptible to congressional repeal.

The administration is cognizant of the deadlines, according to its environmental allies.

“It’s clear that senior career and political leadership are also aware of the calendar,” Billings said.

The administration is “very focused” on getting the rules out in a way that would “insulate them from a reach-back,” Davis said.

At risk of rules ‘bottleneck’

Leaving it late can be dangerous. Rules are already sitting at the White House’s Office of Information and Regulatory Affairs. Others could wait to be printed in the Federal Register.

“There certainly could be a bottleneck at OIRA as more actions get sent for review,” said Brittany Bolen, counsel at the law firm Sidley Austin, who has been tracking regulations.

But life happens. Bolen, then head of the Trump EPA’s policy shop, remembers 2020 when the Covid-19 pandemic landed in the United States. Federal offices closed and Congress took more legislative days to pass relief legislation for the virus outbreak. In turn, the regulatory runway got stretched.

“We were operating on a May timeline, and that got pushed out to August,” Bolen said.

Nevertheless, opposition to several of Biden’s rules runs strong among GOP lawmakers. That could spell trouble for them in 2025.

“I would point to a substantial body of pushback to the promulgation of these rules by Republicans on Capitol Hill,” said Joseph Brazauskas, who led EPA’s congressional and intergovernmental relations office during the Trump administration.

Those include EPA’s forthcoming rules on power plants’ greenhouse gas emissions and vehicles’ tailpipe pollution, said Brazauskas, now senior counsel for the Policy Resolution Group at the law firm Bracewell.

The administration’s latest regulatory agenda, issued in December, provides agencies’ best estimates of when they expect to move next on their rules, including when they will issue final versions.

An Office of Management and Budget spokesperson said the office does not comment on rules under review.

Here are some of the big-ticket regulations environmental advocates are watching for:

EPA

EPA rule writers are hustling behind the scenes to wrap up work on a suite of big Biden regulations on climate, water and chemicals this year.

Next month, EPA is looking to finish a regulation designating the so-called “forever chemicals” PFOA and PFOS as hazardous substances under the Superfund law.

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Federal agencies scramble to finish Biden’s rules —