Enlarge /. US President Joe Biden signs an executive order with US Vice President Kamala Harris (left).
The series of executive orders that Joe Biden signed on his first evening in office included a strong focus on environmental regulations. Some of the high profile actions have been signaled in advance – we're back to the Paris Agreement! The Keystone pipeline has been suspended indefinitely!
However, the row of Executive Orders has a long list that targets numerous changes Trump has made in energy and environmental policies. Many of these will have more subtle but significant effects on US business operations. Many of them are making significant changes, in some cases by removing directives that were passed during the Trump years, some of which we covered at that time. We have therefore tried to get a comprehensive overview of Biden's measures and their possible effects.
Laws, rules and guidelines
Environmental and energy regulations are set through three main mechanisms. The first is through specific laws that would require a change in the way both Congress Houses work together. Next up are more general laws like the Clean Air and Water Act. These allow regulations to be introduced through a formal regulatory process carried out by the executive agencies. This process involves getting public feedback, considering economic considerations, etc., a process that typically takes anywhere from eight months to over a year. Finally, the executive may establish guidelines that cover details not specified by law or rule, such as: B. dealing with deadlines and enforcement details.
In these latter two categories, President Biden can act immediately as they are left entirely to the executive branch despite legal scrutiny. And that's exactly what he's done, ordering reviews of existing rules established during the Trump administration and changing countless guidelines introduced by previous executive orders.
The Congressional Review Act also allows federal rules enacted in the last 60 days to be repealed by a joint resolution of the two Congress Houses. The clock is still running on a number of Trump rules, and with the Democrats in control of both houses, the chances are we are seeing action here. But on his first day in office, Biden took no chances and targeted these rules along with a list of many who are outside the 60 day window.
Trump-era guidelines often sought to get rid of existing guidelines and cripple future adoption of new guidelines. Perhaps the most noticeable of these was Executive Order 13771, which flatly stated that a new regulation could only be passed if two existing regulations were removed. The order did not take into account details such as the total number of regulations available for disposal or the effectiveness and / or efficiency of existing regulations. In addition, the net economic impact on those governed by the new and repealed rules had to be zero.
Another executive order set up "regulatory reform officers" in each agency. They should help identify outdated or costly regulations and then target the regulations that need to be eliminated. Another decision requested that guidelines issued by the agencies to help companies comply with regulations should never contain wording that could be interpreted as creating regulations. Regulation 13892 required enforcement to wait in order for those affected by enforcement to respond to the proposed action.
All of those executive orders are gone now. Citing the need for action to combat climate change and the pandemic, Biden's new executive order describes them as "harmful measures and guidelines that threaten to thwart the federal government's ability to address these issues" to justify their elimination.
Measures that have gone through the entire process of federal regulation are more difficult to cope with. This includes a number of efforts designed to make future regulations difficult to adopt. Notable among them:
- The EPA decided that incidental benefits of pollution limits are not taken into account for the consideration of regulatory costs and benefits. In other words, if a prescription costs $ 100 cleaning bills but avoids $ 100,000,000 healthcare costs, only the first number would matter during the settlement process.
- The EPA has changed its standards of evidence for studies of pollution damage so that epidemiological evidence alone is not enough to trigger regulation.
- Not satisfied with this, the agency found that epidemiological evidence containing patient data cannot be used if privacy concerns prevent the underlying data from being made public.
Biden cannot unilaterally eliminate these rules. All agency heads have now been instructed to review any rules passed throughout the Trump administration to determine if they run counter to Biden's political goals. And the most recently adopted rules are subject to an executive order to the heads of the agencies instructing them to suspend those rules and reopen them to public comment to allow the formulation of a replacement rule. For any rules currently set in court, the Ministry of Justice will request the suspension of the case while the competent authorities re-examine the rules.
Beyond these efforts, the early executive orders target many of Trump's efforts to block Obama-era politics. This includes a fresh look at Trump's efforts to weaken the Obama-era fuel economy standards but go well beyond them. Other goals include Trump's abolition of the Obama-era rules on methane emissions from fossil fuel extraction and the Obama-era Waters-of-the-USA rules. In their original formulation, these treated things like small ponds and seasonal streams as part of a single, interconnected water system regulated under the Clean Water Act. Trump reversed the rule; Biden will consider reviving it. The extraction of fossil fuels in the Arctic National Wildlife Refuge was banned under Obama, approved for leasing by Trump and is likely to be blocked again by Biden.
Fossil fuel extraction plays an important role in politics that Biden is rethinking or reversing. A Trump executive order attempted to restrict the use of the clean water law to block energy development, the ability of state laws to limit fossil fuel exports, and – strangely for a party supposedly enthusiastic about the free market – targeted pension funds that limited theirs Stocks in the energy sector. This order has been completely repealed.
Trump also urged encouraging energy development at the expense of applying laws such as the Clean Water Act, National Environmental Policy Act, and Endangered Species Act. Biden reversed the resulting guidelines. Biden also targeted contracts promoting offshore drilling in the Gulf of Mexico and the Arctic, and another that ordered a review of whether national monuments stood in the way of energy development.
Trump actions to limit the size of several of these national monuments are also being rolled back. These include Bears Ears and Grand Staircase-Escalante to the southwest, as well as the Northeast Canyons and Seamounts offshore reserves off the coast of Maine.
Trump's somewhat bizarre objections to efficiency rules for lightbulbs and appliances (especially toilets) resulted in some of them being eliminated. You will be back now.
Get some science back
Other actions taken so far suggest that Biden continues to take seriously his promise to bring science back into policy decisions. Trump had passed an executive order addressed to advisory committees. This is one of the ways that policy makers in the executive branch can solicit input from academics (as well as from industry and elsewhere). In recent years, around a thousand advisory committees have generally been active at any given time. Trump had enacted an executive order aimed at rapidly eliminating about a third of those requests and setting a long-term goal of only having 300 active people. These borders are gone.
Trump also blocked the use of a number called the social cost of carbon that seeks to use the future consequences of climate change to determine the cost of today's emissions. Biden isn't just reversing that decision – he's expanding it to apply to two additional greenhouse gases: methane and nitrous oxide. A working group is set up by its executive order to produce an initial estimate within 30 days. In this way, the entire federal government can carry out cost-benefit analyzes for climate-relevant regulations, which is often required by law.
To regulate or not?
Many of the other executive orders that Biden revoked were instances where Trump directed the agencies to reevaluate existing regulations to determine whether they were efficient, inexpensive, overlapping with other regulations, or simply bypassed by scientific or market developments. Obviously there was nothing problematic about many aspects of these orders, which is why Biden's removal seems somewhat capricious – why should he object to the finding of ineffective regulations?
It is important to recognize that, despite the seemingly neutral language, the orders should allow the Trump administration to overturn regulations regardless of their effectiveness. By eliminating them, Biden will free staff to pursue new policy initiatives and restore government capacity lost over the past four years. How you feel about this will likely depend on your attitude towards regulations in general.
Overall, many of the decisions made here are fundamental policy reversals – decisions about whether to restrict enforcement of the Clean Water Act, for example to promote energy development. However, most of them are based on a clear political vision that gives very high priority to tackling climate change and seeks to refocus existing laws to better reflect both that priority and the rapidly changing economic reality that makes it much less difficult makes to do so as during the Obama administration.
Eventually, with control of both Houses of Congress, Biden should be able to pass new laws that will make these political goals more effective. But his inaugural actions show that he is unwilling to wait or risk the prospect of a deadlock in the capital for the next two years.