Rolling back climate regulations could take a few years to complete
WASHINGTON — President Joe Biden has ordered the review of more than 100 rules and regulations on air, water, public lands, endangered species and climate change that were weakened or rolled back by his predecessor.
But legal experts warn it could take two to three years — and in some cases, most of Biden’s term — to put the old rules back in place.
“People should temper their expectations about what can be done quickly,” said Kevin Minoli, who served as a lawyer at the Environmental Protection Agency in the Clinton, Bush, Obama and Trump administrations.
He added, “It’s very possible, more possible than not, that some of the Trump rules will still be in effect for a couple of years.”
Biden has an array of legal tools to reinstate environmental protections that were dismantled by the Trump administration.
Gina McCarthy, his top domestic climate change adviser, headed the EPA in the Obama administration and served as the chief author of some of the nation’s most comprehensive climate change rules. She has reviewed every possible option to restore those protections, said a White House official who’s familiar with her thinking.
But those tools take time. Experts in environmental law said the process of rolling back the Trump-era rollbacks quite likely would fall into a few broad categories.
In a limited set of cases, Biden will be able to use his executive authority immediately, for instance to cancel individual fossil fuel infrastructure projects or reinstate federal protections on distinct areas of land and water. He did that on Day 1 when he rescinded the construction permit for the Keystone XL pipeline.
The White House announced Thursday that any new lease of drilling rights on public lands must have the personal approval of the highest-ranking officials at the Interior Department.
Likewise, Biden is expected in the first months of his term to restore federal protections around at least two national monuments in Utah: Bears Ears and Grand Staircase-Escalante.
On Thursday night, the White House released a fact sheet singling out its review of Bears Ears and Grand
Staircase, along with one other, Northeast Canyons and Seamounts Marine National Monuments off the New England coast, to “determine whether restoration of the monument boundaries and conditions would be appropriate.”
Patrick Parenteau, a professor of law with the Vermont Law School, said the Biden administration also could act quickly to block Trump’s push to drill in Alaska. In the last days of Trump’s administration, the Interior Department auctioned off oil and gas drilling leases in the Arctic National Wildlife Refuge.
“The Biden administration can pretty quickly cancel those leases,” said Parenteau, although he noted that before doing so, the administration quite likely would want to conduct a legal review of whether it would need to compensate the companies that purchased the leases.
Biden’s team also has looked to Congress, where Democrats potentially could use their House and Senate majorities to revoke some of the Trump administration’s last-minute regulatory rollbacks.
Under the Congressional Review Act, any regulation finalized within 60 legislative days of the end of a presidential term can be overturned with a simple congressional vote.
In the early days of the Trump administration, Republicans used that law to quickly wipe out 16 Obamaera rules.
But legal experts have warned Democrats that using that law to undo environmental policies could backfire: Once Congress has used it to wipe out a regulation, the administration is legally barred from enacting a substantially similar rule. That twist would bar the Biden administration from replacing a weak Trump-era rule with a similar but more stringent one.
Then there are the longerterm rollbacks. It could take two years or more for the administration to restore Obama-era climate change regulations that were designed to cut emissions of planetwarming pollution across major sectors of the economy.
It also could take that long to restore rules on industrial emissions of toxic pollutants, as well as a major rule, Waters of the United States, designed to protect wetlands and waterways.
“When it comes to restoring the vast majority of these Obama environmental policies, the rollbacks were actually done by putting in place new regulations,” Jeffrey Holmstead, a lawyer representing fossil fuel companies who served in the EPA in both Bush administrations. “In some cases, that took two to three years. They will have to be replaced with new regulations. There is a legal process that has to be followed.”
The work of reinstating the federal government’s more comprehensive regulations on air, water and climate pollution will take even longer. A key reason, legal experts said: when the Trump administration rolled back those rules, it almost never eliminated them entirely. Rather, it replaced strict federal pollution regulations with new, weaker pollution regulations.
The Biden administration, in turn, will seek to legally undo those weak regulations and replace them with pollution controls even tougher than those implemented by the Obama administration.
John Kerry, the new White House climate envoy, told international business leaders Thursday that the United States must move forward on climate policy with “humility and ambition.”
“We really don’t have a minute to waste,” he said, calling on major economies to phase out coal five times faster than the rate at which it’s already declining, to step up renewable energy six times faster, and transition to electric vehicles 22 times faster than the current pace.
All of that would require aggressive domestic climate policies, but just undoing the Trump policies typically would take two years or more.
For example, the Trump EPA undid the Obama administration’s single largest policy aimed at curbing climate change, a rule that forced automakers to rapidly increase the fuel economy of passenger vehicles, and, in so doing, drastically lowering their pollution of heattrapping carbon dioxide pollution.
To do that, the EPA had to follow a long legal path, formally publishing a proposal to change the rule, opening it to public comments, drafting legal, economic and scientific justifications for the rule, and performing complex technical analyses of the impacts of the new rule on highway safety, air quality and consumer behavior.
Although the Trump administration began its rollback of the Obama auto pollution rule within Trump’s first days of taking office, it was not completed until last spring.
The same timetable could await Biden as he seeks to reinstate the rule.
Michael Gerrard, director of the Sabin Center for Climate Change Law at the Columbia Law School, said it could take even longer for the EPA to restore the Waters of the United States rule, which was designed to protect the streams, wetlands and smaller water systems that flow into larger bodies of water, such as lakes and rivers.
The Trump administration replaced that rule last year with a new rule that stripped away protections of those wetlands and smaller water bodies.
“When it comes to restoring the vast majority of these … policies, the rollbacks were actually done by putting in place new regulations. In some cases, that took two to three years. They will have to be replaced with new regulations.”
Jeffrey Holmstead, lawyer who served in the EPA