Effort to unwind late Trump-era regs may prove arduous

Depending on how the Georgia runoffs impact control of the Senate, Trump’s lame-duck rulemaking could take a long time to dislodge.

Air-pollution standards that some scientists consider inadequate would be kept in place under one of the "midnight regulations" being pursued by the outgoing Trump administration.
AP Photo/Richard Vogel
Nov. 18, 2020, 8 p.m.

When Donald Trump swept into the presidency in 2017, he and the Republican-controlled Congress set about dismantling President Obama’s regulatory legacy bit by bit.

When President-elect Joe Biden takes office Jan. 20, it may be harder to return the favor.

And without Democratic victories in the two runoff elections in Georgia, which would give them control of the Senate, dislodging Trump-era regulations could take months.

A day after the Nov. 3 election, the Environmental Protection Agency submitted a rule to the White House that would keep standards for fine particulate matter in the air that some scientists—a panel that was ultimately disbanded by the EPA—said should be tightened. It’s just one of 150 pending actions on the website of the Office of Information and Regulatory Affairs, the executive-branch agency that reviews draft regulations. Of those, 33 have been received since Election Day.

The rulemaking process can take months, but in the waning days of an administration, it kicks into high gear to get out so-called “midnight regulations” in its lame-duck period.

Trump ran in part on a promise to cut regulations. He famously issued an order to agencies to scrap two regulations for every one created, but even he will leave his share of midnight rules for Biden to deal with.

Some remaining rules have bipartisan support, but among the 150 currently under White House review is a rule that would change how the Interior Department designates a critical habitat under the Endangered Species Act and another that could limit penalties for the accidental killing of migratory birds. Yet another would change criteria under which an individual could claim asylum within the United States.

Perhaps of particular interest to Trump is a final rule that would limit requirements for some shower heads to comply with water-efficiency regulations. Trump has in the past complained about low-flow shower heads.

“So what do you do? Do you stand there longer? Do you take a shower longer?” Trump said at a July speech at the White House. “Because my hair—I don’t know about you, but it has to be perfect.”

As for the rule locking in standards for particulate matter in the air—a move the oil and gas industry has pursued—EPA spokesman James Hewitt didn’t say if the administration would complete the regulation by Jan. 20, but he said the agency “continues to advance this administration’s commitment to meaningful environmental progress while moving forward with our regulatory reform agenda.”

In the past 20 years, all administrations have rushed to get some “cleanup” work done in the regulatory space, said David Hayes, director of the State Energy and Environmental Impact Center at the New York University School of Law.

“What’s interesting and revealing about this situation right now is how many major rules or decisions are still outstanding,” said Hayes, whose organization works with state attorneys general to oppose deregulation on environmental issues. “I think it speaks to the fact that this administration has had a very difficult time implementing its regulatory agenda.”

At the end of Obama’s tenure, OIRA officials told executive agencies to get their most important regulations in quickly, said Howard Shelanski, who served as OIRA administrator in Obama's second term.

“In the Obama administration, we started well over a year before the end of the administration, meeting with agencies and letting them know that we were not going to cut corners on process,” Shelanski said.

Reversing executive orders can be done on Day One of a presidency, as Trump did with many of his predecessor’s. Obama issued some 30 executive orders reversing those from the George W. Bush era, according to a study by Pew Research.

As with other incoming administrations, when Biden takes office he’ll likely put a hold on all existing rulemaking and sift through regulations currently underway, leaving undesirable ones on the cutting-room floor.

But once regulations have gone through the rulemaking process and are in place, reversing them can be a long, difficult process.

"A fast rulemaking process could take as short as a few months, but on average a major rule would take six months to a year to go through the process,” Shelanski said.

They can also be dislodged through the courts, but that can take years as well. And one of the top priorities of Trump and Senate Republicans has been to appoint a massive number of conservative judges to the federal court. At the end of his term, some 25 percent of judges on the federal bench have been appointed by Trump. That could throw a wrench in court challenges to Trump-era rules and may pose problems for Biden’s own regulations.

Another avenue is a once-obscure law that allows Congress to nullify executive regulatory action, the 1996 Congressional Review Act. When Republicans swept into power in 2017, they quickly struck down 14 Obama regulations using the CRA, though 20 other attempts failed.

Before the Trump era, Congress had eliminated only one rule though the CRA, a Clinton administration rule on workplace ergonomics in 2001.

But Republicans held the House and Senate when Trump took power, so advancing a CRA resolution was fairly easy. CRA resolutions are privileged, meaning a chamber must take them up for a vote. They also require only a simple majority in the Senate, so filibusters aren’t an issue.

So as the political world turns its eyes to Georgia, where a pair of runoffs will determine control of the Senate, a quick regulatory overhaul is essentially on the ballot as well.

If Democrats take both Georgia Senate seats, a political feat, that gives them the ability to move CRA resolutions though the Senate much easier. That, however, assumes all Senate Democrats, including centrists such as the fossil-fuel-friendly Sen. Joe Manchin, stick together.

“The outcome of the Georgia runoff elections will play into how effective of a legislative tool CRA resolutions will be, but they’ll be under consideration,” a House Democratic leadership aide, who was granted anonymity to speak about strategy, told National Journal. “We will coordinate with the incoming administration on whether to use them and when to use them as part of our effort to roll back many egregious rules put in place by President Trump that undermine the well-being and safety of Americans.”

The CRA allows Congress to nullify regulations enacted up to 60 legislative days prior, meaning Democrats could reach back as far as rules enacted in the summer of 2020. The exact date will change depending on how many days lawmakers meet between now and Jan. 3, when the current congressional term ends.

The past few administrations have tried to protect their most prized regulations against being overturned under the CRA by putting them out before the summer cutoff period before an election, though the Trump administration may still have a safe harbor if Republicans keep the Senate.

“Particularly after they exercised the Congressional Review Act so frequently when they came in, you would think that they would be particularly attuned to protecting their final rules from CRA, and yet here we have some of the most important rules coming in in the final months,” Hayes said.

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