Biden builds team to get aggressive on regs

President-elect Joe Biden is building a team of seasoned government professionals who can help him embark on an aggressive regulatory agenda once he takes office. 

Biden will face a divided Senate when he takes office that could be controlled by Majority Leader Mitch McConnell (R-Ky.) depending on the outcome of two Jan. 5 runoff elections in Georgia.

This will make moving legislation difficult, and will almost certainly force Biden to lean on executive actions and regulatory work — both to accomplish his own agenda and dismantle President Trump’s.

“There is not an area of our life the regulation doesn’t touch and when progress in Congress is stifled because of gridlock or partisan differences, president after president has turned to regulation, and Biden will be no different,” said Stuart Shapiro, a Rutgers University professor who worked in the Office of Management and Budget under the Clinton and George W. Bush administrations.

Biden has already drawn in experts with deep government and regulatory backgrounds to head some of his agencies. Many of those who will serve in his White House or broader administration have worked in multiple previous administrations. 

They include Gina McCarthy, a former Environmental Protection Agency (EPA) administrator responsible for a number of Obama-era rules, who will serve as a domestic climate czar tapped to oversee the numerous departments that will play a hand in addressing Trump’s numerous environmental rollbacks.

There’s also Xavier Becerra, who as California’s attorney general led the fight against Trump’s rollbacks to ObamaCare and if confirmed will head the Department of Health and Human Services. 

Michael Regan, Biden’s pick to helm the Environmental Protection Agency, has served as the top environmental regulator for the state of North Carolina for four years and also worked at EPA on its air quality program under Presidents Clinton and George W. Bush. 

“The overall theme of Biden’s picks have been experience in government, and that’s a contrast to the Trump administration,” said Shapiro. “I do think he is looking for people who are going to know how to work the machinery of government to get things done.” 

They will have a heavy workload. Under the Trump administration, various departments have rolled back a suite of environmental laws, set up barriers to immigration and weakened a host of discrimination protections at various agencies.

Meanwhile, Biden has pledged to move forward with policies to expand health care, address racial injustice and undo the Trump administration’s immigration agenda and environmental rollbacks. Biden’s first 100 days are likely to be focused on addressing the coronavirus pandemic, as his administration takes over the vaccine distribution process and he pushes for Congress to pass more legislation to address the pandemic. 

Democrats are pushing Biden to waste no time in beginning a regulatory process that can take years.

“The regulatory agenda is going to be critical — and that has to be an agenda that is aggressive and swift enough to meet the moment,” said Amit Narang, a regulatory policy advocate with Public Citizen, a left-leaning advocacy group. 

“In the beginning that’s going to be mostly about dealing with the last-minute Trump actions and seeing how much of that can be blocked right up front at the beginning of the administration,” he said. “The rollbacks that have been on the books longer will take longer to undo, so time is going to be of the essence.”

Part of the reason Biden will have so much to do is because of how quickly the Trump administration worked on their own regulatory rollbacks.

“In a lot of cases, they just broke stuff. It doesn’t take that much time to break stuff, so I think the challenge is when you’re building things and really trying to build a set of rules that make a difference and will be durable — that’s going to take time,” said Lisa Heinzerling, an environmental and administrative law professor at Georgetown University. 

Some also see issues with Biden’s plans to spearhead his efforts with “czars,” particularly on the climate front.

“Their job is to try to oversee some kind of overarching issues within the executive branch without responsibility and the right authority,” said Shapiro, who expected those in Cabinet positions and other high-level roles in the White House, like the Office of Management and Budget director, to be more effective.

Agencies like EPA are the experts, Heinzerling said, with a strong hierarchical structure of scientists and policy experts dedicated to building sound regulation. But under the structure set up by Biden, she worries there will be too many layers.

“So if EPA wants to put out a rule, then they have the Council on Environmental Quality, the economic offices in the White House, the new climate czar, the new climate envoy all weigh in. You have all those people that have stake in and arguably responsibility for the rules they want to issue, and unless they have very clean lines of authority, they may find themselves in a bit of a tangle,” she said.

Will McDow, who leads the Environmental Defense Fund’s landscape resilience initiative, described Regan as someone who collaborates well and has succeeded in executing a long-term agenda, qualities that are likely to give him an advantage if he is confirmed to lead EPA, especially given the number of players at the table. 

“I’ve been really impressed that Michael is willing to have this long vision, be willing to stay focused on that even when it doesn’t mean getting the immediately big headlines,” said McDow, who worked with Regan for eight years at the environmental advocacy group. “He is focused on getting things done over the long term.”

McCarthy has also shown she doesn’t shy away from regulation, dishing up two of the Obama administration’s most expansive regulations: the Clean Power Plan rule restricting emissions from utilities and the Waters of the U.S. rule expanding federal protections for waterways. 

Both, however, were tied up in extensive litigation, just as almost every Trump regulation has been, a reminder that regulations must be crafted to be defensible in court. 

That’s largely where the Office of Information and Regulatory Affairs (OIRA) comes in. It’s the office designed to provide the final vetting to stress-test any flaws in a regulation.

But even with knowledgeable and aggressive agency heads, there’s fear that Biden’s pick to lead OIRA could slow the administration down, stalling progress on needed regulation.

“It’s a critical department and one that, during the Obama era, served as a major stumbling block to regulation,” Heinzerling said.

That dynamic changed during Obama’s second term, when he appointed a new OIRA head.

“The last two Democratic presidents have found the agencies late in their terms in office. They have turned around in their second term and said, ‘Look at all these people that can do work that is relative to our agenda’ and used them,” Heinzerling said.

“What is promising about Biden is I think he’s already discovered them.”