By Jennifer A. Dlouhy
The 11th-hour regulatory race underscores the extent to which federal agencies are anticipating Biden’s swearing-in as U.S. president on Jan. 20 even as President Donald Trump refuses to concede the election. It also reveals a widespread effort by Trump officials to leave their imprint on federal policy and — at least temporarily — tie the hands of their successors.
“Everyone has to be vigilant over the next 60-odd days because the administration can create more work for the people coming in,” said David Hayes, a former deputy Interior secretary who leads New York University’s State Energy and Environmental Impact Center. “They can take additional actions here that will put sand in the gears of the early Biden administration.”
Already, the Trump administration is poised as soon as Monday to advance plans for selling drilling rights in the Arctic National Wildlife Refuge, despite Biden’s vow to protect that Alaskan wilderness. And officials are reviewing measures that would lift criminal penalties for accidentally killing migratory birds, lock in existing air pollution limits and make it harder to impose new environmental safeguards.
Altogether, the White House Office of Information and Regulatory Affairs that is in charge of reviewing proposed rules is looking at 23 measures submitted just since Election Day, foreshadowing the coming deluge.
While Biden officials can unwind many Trump rules, that will consume time and resources, even as the incoming administration intends to write new measures regarding pollution, energy efficiency and drilling regulations.
And the Biden administration probably won’t have help from Congress immediately on overturning rules under the Congressional Review Act, since Republicans are likely to maintain control of the Senate. The law makes it easier to repeal last-minute regulations enacted by an outgoing administration.
“They have to clean up this huge mess that’s been deliberately left behind before they can even start advancing their affirmative agenda,” said James Goodwin, an analyst with the Center for Progressive Reform.
“The story for the last four years is how can we tear down these agencies and make them as useless as possible,” Goodwin said. “The next few weeks is going to be dedicated to that, and they will not miss a trick when it comes to making the Biden administration’s life a misery.”
For instance, the White House just began scrutinizing a final rule to end criminal penalties for oil explorers, homebuilders and other companies that accidentally kill migratory birds, setting the stage for the Interior Department to finalize the measure within weeks. And on Thursday, the White House started reviewing a rule defining the “habitat” that gets protection under the Endangered Species Act, just four weeks after the deadline for public comments on the proposed measure.
The Energy Department is trying to finish regulations weakening energy efficiency standards for furnaces and other appliances. That includes a rule greenlighting high-flow shower heads with multiple nozzles — a measure that drew momentum after Trump complained that with more efficient models “you can’t wash your beautiful hair properly.”
The Environmental Protection Agency is rushing to codify decisions to retain existing air quality limits on ozone and particulate matter, rebuffing public health advocates’ calls to tighten the pollution standards.
The administration also is propelling regulations that go to the heart of federal agencies’ power.
For instance, Trump’s EPA is close to finalizing two measures that could make it harder to impose pollution curbs. One would block the agency from relying on scientific research that isn’t or can’t be made public. Another would limit how the agency calculates the costs and benefits of future regulations.
It’s customary for administrations to finalize a spate of rules during their final months in office, with a final spurt of so-called midnight regulations.
“One big difference from the recent past is that because Trump is only a one-term president, there is more for EPA to rush to finalize then when we’ve had two-term presidents,” observed Amit Narang, a regulatory policy expert with the watchdog group Public Citizen. “But there is a real risk that anything EPA rushes out the door in sloppy fashion will get struck down in court, just like so many of EPA’s rollbacks under Trump have been.”
Though Inauguration Day is still nine weeks away, the regulatory clock may run out sooner. The enforcement of any final rules that haven’t become binding by Jan. 20 can be postponed by a new administration, buying time for a rewrite. Because there is a 60-day waiting period for major rules to come into force, the Trump administration actually needs to get those measures published in the Federal Register by Nov. 21.
The EPA already is trying to beat that clock with an air permitting regulation teed up for publication in the Federal Register on Nov. 19, just two days before the cutoff.
The push goes beyond well-telegraphed rules to permitting decisions and project approvals that may be harder to undo.
For example, the Interior Department is fast-tracking a proposal to conduct seismic surveys in the Arctic National Wildlife Refuge — an industrial operation designed to help pinpoint possible oil reserves that environmentalists say risks scarring the tundra and trampling polar bears in snow-covered dens.
Adam Kolton, executive director of the Alaska Wilderness League said he’s deeply concerned the Interior Department is trying “to jam this massive seismic program through in the final minutes of the Trump administration,” without enough environmental review and against the wishes of the American people. “It’s Defcon one on the level of concern list,” Kolton added.
While regulations can be undone, the Biden administration could not repair damage if heavy seismic vehicles roll into to the refuge and begin work, Kolton said. “If you want to throw a hand grenade in the middle of the Interior Department transition team, this would be the way to do it,” he said.
The Trump administration is also advancing plans to sell drilling rights in the refuge before Jan. 20. It’s not clear that the Interior Department would have time to formally issue any leases sold in the final weeks before Inauguration Day, but every step advancing Arctic oil development could complicate a Biden administration retreat.
Oil companies also can expect a few more chances to buy up drilling rights in other parts of the U.S., including during a Trump administration sale of coveted New Mexico territory Jan. 14.
The last-minute push is essential, said Tom Pyle, the president of the American Energy Alliance, a free-market advocacy group that has cheered much of Trump’s deregulatory agenda.
“Even as President Trump and his legal team continue to explore their options, it is critical that his agencies to put a full-court press on getting the remainder of his agenda across the finish line as an insurance policy,” Pyle said. “Joe Biden did not receive a mandate from voters to upend all the gains that President Trump made with respect to our energy independence.”