Senate majority offers Biden new avenues on Trump environmental rollbacks

The incoming Senate Democratic majority opens new avenues for the incoming Biden administration to reverse a host of last-minute environmental rollbacks by President Trump.

The Environmental Protection Agency (EPA) and other agencies have finalized numerous rules in the last several months of Trump’s presidency, but Democrats can now consider going the legislative route to essentially roll back the rollbacks, sidestepping the lengthier rulemaking process.

Even the slim majorities in both chambers gives Democrats better prospects for accomplishing their goals by way of the Congressional Review Act (CRA), which allows Congress to nix any regulations finalized in the previous 60 legislative days, stretching back to mid-August.

Within that time period, the Trump administration has finalized its so-called secret science rule, which could limit consideration of landmark public health research; gutted protections for migratory birds; limited habitat protection for endangered species; blocked future administrations from setting greenhouse gas regulations on many industries; and reduced the cost of drilling on public land.

The EPA recently boasted in a release that it has finalized 78 deregulatory actions during Trump’s presidency.

Biden’s policy agenda will soon collide with those rollbacks.

Experts say Biden won’t be able to achieve his goal of putting the U.S. on track to meet net-zero emissions unless many of the Trump regulatory actions are reversed.

Biden has already pledged to sign an order on Day One that would block any “midnight rules” from the Trump administration that have not yet taken effect, but those that have already been implemented will be much tougher to unwind.

The CRA was a legislative tool favored by Republicans in the early days of the Trump administration, used by a GOP-led Congress to strike down 14 regulations from the Obama era.

But Democrats have been more reluctant to use the CRA, partly because they’re more ideologically aligned with imposing regulations but also due to concern over statutory language in the CRA that then blocks the relevant agency from crafting another rule that’s substantially similar.

“There’s an issue of Democrats being opposed to the CRA on principle, but over the last year there’s been a conversation where folks basically acknowledged it’s a tool in the toolbox and that Trump’s policies are so awful that you can’t rule out the CRA,” said Matt Kent, a regulatory policy expert with Public Citizen, a left-leaning advocacy group.

“This isn’t something that the left all of a sudden thinks is great and is going to be using all the time. It’s going to be a targeted, really kind of a handful of actions, and there’s got to be communication between Biden, agencies and Congress. And they’re going to identify the rules that are the best candidates.”

There are signs that some congressional Democrats are preparing their own lists of Trump rollbacks to target with the CRA.

“One of the consequences of irresponsible governing is that the vast majority of the Trump administration’s hallmark policies will be easily undone by the courts, by Congress or by the Biden administration itself. Several options are available to make that happen, including in some cases the Congressional Review Act,” an aide to Sen. Tom Carper (D-Del.), who is set to be the chair of the Senate Environment and Public Works Committee, told The Hill.

“We are confident that the worst policies of the Trump administration — most of which are deeply legally flawed — can expeditiously and effectively come undone.”

Environmental groups are eager to help the Biden administration make that determination, sorting out which rules are better dismantled by the agency or in court rather than the CRA. But they too have fears about a provision in the law that could block the administration’s agencies from crafting a similar rule in the future.

“The catch you run into with the CRA is it’s a blunt instrument. It ties the hands of an agency going forward by preventing them from creating another similarly substantial rule. And because the CRA has been invoked so infrequently, there is not a ton of case law on what is ‘substantially similar,’ ” said Aaron Weiss, deputy director with the Center for Western Priorities, a public lands watchdog group.

“So while there may be cases where the CRA should be used, there may be others where there are better, more efficient, flexible ways to roll back the worst of the Trump administration policies.”

Even if Democrats want to draw on the CRA, one challenge will be securing the necessary floor time. Each resolution of disapproval — the formal way to kick off the CRA process — requires about 10 hours of floor debate, which could be tough to schedule amid a number of other priorities in the first 100 days of Biden’s presidency.

There will also be competition to use the CRA on a several other Trump policies, like rules that weakened asylum protections and other immigration processes, as well as those that place limits on discrimination and consumer protections.

The 50-50 split in the Senate, where Vice President-elect Kamala Harris would cast any tie-breaking votes, means Democrats can’t afford to lose a single vote.

That razor-thin margin has put the spotlight on Sen. Joe Manchin (D-W.Va.), one of the caucus’ more conservative members.

“You still need 50 senators to get there, so any of these are not a slam dunk because you still have a closely divided Senate and any senator in the Democratic Party can hold up or tank one of the CRAs,” Weiss said.

Agencies could also move to write their own rules, a process that can drag out for years. And if Trump rules are challenged in court, judges could remand them back to the agency to start the clock on rewriting new rules.

For that reason, some environmentalists argue the Biden administration would be better off turning to Congress rather than the courts, even if lawyers are confident in their ability to poke holes in the process and reasoning used by the Trump administration when it crafted its rules.

“I’m not daunted by taking the rules to court,” said John Walke, a senior attorney at the Natural Resources Defense Council.

“I think it’s more efficient and sensible to overturn the rules quicker using either legislative or executive branch tools because litigation takes so darn long and there are more Trump judges on the bench now, though I think these rules would be found illegal by judges from any administration.”