|A recent rule that frees oil and gas companies from repairing methane leaks could be subject to regulatory rollback by Democrats following the election. Above, a video still captures a 2018 methane leak at an Exxon Mobil site in Belmont County, Ohio. Image: FracTracker Alliance. Click to enlarge.|
TipSheet: Could Dems Borrow GOP Playbook To Roll Back Trump Rules?
EDITOR'S NOTE: This story is one in a series of special reports from SEJournal that looks ahead to key issues in the coming year. Visit the full “2021 Journalists’ Guide to Energy & Environment” special report for more.
By Joseph A. Davis
The 2020 election could change a lot of things. One in particular — of potentially great interest to environment journalists — is that any new Democratic administration could try to roll back a good many of the Trump administration’s deregulatory moves.
It’s only really a possibility if the Dems take not just the White House, but the Senate too, while keeping the House (choose your betting odds, but many bookies and political pundits do see a Dem sweep as possible, so stay tuned).
But if — and it’s a big if — the Democrats do sweep the election, then there will indeed be Trump regulatory rollbacks they will want to reverse.
The key to that process is an obscure law known as the Congressional Review Act.
In certain, fairly rare, circumstances and only when the House, Senate and White House are held by the party opposite to the previous president, the Congressional Review Act allows Congress to undo a previous administration’s rulemaking actions.
The backstory on the Congressional Review Act
One important element of the rules is a deadline — the only regulations that can be undone are those finalized within 60 legislative days before the election.
“Legislative” days are not like the days on your calendar. Think of them as roughly equivalent to the days that Congress is actually in session.
Since we don’t know for sure how many days the current Congress will officially be in session, we don’t know the exact deadline. The pandemic has compounded the uncertainty.
Expert observers say that any rule finalized
by the Trump administration after about
May 15, 2020, could end up being fair game.
But a number of expert observers say that any rule finalized by the Trump administration after about May 15, 2020 (or June 1 at the latest), could end up being fair game.
Another issue is what constitutes a “rule.” Beyond formal and final rulemakings, it could include revisions and guidance on how to interpret or implement a rule. Parties may lawyer up.
Keep in mind, too, that there are other ways to repeal rules (including another rulemaking) that a new administration could choose.
One such way is a lawsuit. For many finalized EPA rules (like Trump’s “Affordable Clean Energy” rule limiting CO2 from power plants), environmentalists are already in court. In those cases, a new EPA could simply withdraw its case and propose a greener rule.
Why it matters
To help you envision what may make environmental news in early 2021 — if Dems sweep — we are offering this partial list of potentially vulnerable Trump regulatory actions.
- NEPA rule: One of Trump’s most momentous rule changes was a weakening of the rule implementing the National Environmental Policy Act, or NEPA. Trump finalized this (may require subscription) July 15. NEPA mandates environmental impact assessment of major federal actions.
- Methane rule: This would be the methane rule finalized by the U.S. Environmental Protection Agency August 13 (may require subscription). Not the other one, which applied to public lands. It’s important because methane is a major greenhouse gas, and leaks, flares and venting of methane are fairly easy for the oil industry to limit.
- “Secret science” rule: This rule would restrict what science EPA could use to justify its pollution-control regulations. Environmentalists and scientists opposed it because it disqualified good studies when the personal identities of test subjects were not publicly disclosed. Originally proposed in 2018, it was redrawn and reproposed in 2020. It has not been finalized (subscription required) yet, so if it is not, then a new administration could simply withdraw it.
- Mercury air and toxics standard: The Clean Air Act allows EPA to set standards for emission of toxic substances from coal-burning power plants. The Obama administration set a tight standard, which the Trump administration weakened in April 2020. But because of a thicket of interpretive arguments and regulatory tweaks, it could still be vulnerable to the CRA.
- “Once in, always in” rule: This rule weakens a longstanding rule governing emitters of toxic pollutants under the Clean Air Act. The Trump EPA opposed a longstanding rule that such polluters had to continue limiting emissions even if they downsized. The Trump rulemaking rescinding that provision was finalized Oct. 1.
- Migratory birds incidental take rule: For a long time, the Migratory Bird Treaty Act was interpreted to forbid and penalize harm to birds resulting from certain activities — even if the harm was unintended. Trump’s Fish & Wildlife Service reinterpreted the law to end penalties for incidental harm. It then decided to codify that policy in a new regulation. F&WS proposed the rule in January 2020 (may require subscription), but has not yet finalized it.
Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, as well as compiling SEJ's weekday news headlines service EJToday. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column and WatchDog Alert.
* From the weekly news magazine SEJournal Online, Vol. 5, No. 37. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.