Biden Will Face Limits Reversing Trump-Era Environmental Policies

In this 2015 photo, pumpjacks work in a field near Lovington, N.M.

In this 2015 photo, pumpjacks work in a field near Lovington, N.M. AP Photo/Charlie Riedel, File

 

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Environmental groups want to see the president-elect roll back the Trump administration’s deregulatory agenda and make progress on climate and other issues. But major legislation will be tough to pass and revamping rules will take time.

Environmentalists are eager to see major shifts on climate and conservation policies from the incoming Biden administration, but political constraints and the realities of federal rule-making could limit or bog down some of what is possible in the next couple years.

President Trump’s term has been a bleak chapter for environmental advocates and Biden’s election marks a chance for a 180-degree turn. The Trump administration put a heavy emphasis on slashing red tape and bolstering fossil fuels, as the president downplayed concerns about climate change despite scientists' dire warnings about its effects.

Trump’s legacy includes actions like relaxing emissions standards for power plants and vehicles, rolling back requirements related to methane releases from oil and gas producers, chopping about 2 million acres from two national monuments in Utah, and withdrawing the U.S. from the international climate pact known as the Paris Agreement.

Biden, on the other hand, has described climate change as “an existential threat” and outlined a platform that includes a range of programs aimed at getting the nation to a “100% clean energy economy” and “net-zero emissions” by 2050. 

The president-elect has staked out support for tightening vehicle fuel economy standards, speeding up the transition toward electric vehicles and imposing tough limits on methane pollution from the oil and gas industry. Biden has also embraced ambitious targets for conserving land and water over the coming decade. And he says he’ll reenter the Paris accord.

“I'm hopeful that the Biden administration will be able to move swiftly to reinstate a lot of the environmental and climate rules that the Trump administration dismantled,” said Trevor Higgins, director of domestic climate and energy policy at the left-leaning Center for American Progress. “That would be a great place to start getting things back on the right track.”

But environmental and land conservation groups don’t just want to return to policies from the pre-Trump era. They also say it will be necessary to break new ground in order to adequately address the threats posed by climate change and to tackle other environmental issues, like preserving public lands and wildlife habitat, as well as preventing species from going extinct.

“The urgency of the climate crisis, of the nature and biodiversity crisis, of the equity imperatives across our country, sort of demand not just rebuilding to where we were, but really making some quick progress,” said Drew McConville, senior managing director of government relations for The Wilderness Society.

On that front, the Biden administration is likely to face some challenges. Mustering enough support in Congress to pass major climate legislation that aligns with Biden’s agenda will be a long-shot at best if Republicans hang on to a slim majority in the Senate by winning at least one of two January runoff elections in Georgia.

John Coequyt, director of global climate policy at the Sierra Club, said he sees some possibilities for bipartisan deals. There could be opportunities for cooperation on climate and environmental issues in more routine bills setting policies in areas like agriculture and transportation, as well as infrastructure legislation dealing with projects like electricity grid upgrades, he said.

But Coequyt also acknowledged that with a GOP-controlled Senate, climate legislation that is sweeping in scope or that involves taxes or major spending is very unlikely.

Similarly, Benjamin Zycher, a scholar at the conserviative-leaning American Enterprise Institute raised doubts that Biden will be able to make good on his pledge to drastically cut emissions in the coming years by going through Congress. “It’s just impossible, there’s just too many people who would be hurt substantially, economically,” he said. 

“They're going to have to go to a regulatory approach and that is going to be very, very difficult,” Zycher added.

Like Trump, Biden will have the power to overhaul federal rules and regulations. But in some cases the formal process of drafting these measures could take years of time during his term. It will also be complicated by the fact that many Trump administration rules are being challenged in court and will likely need to be extracted from these legal proceedings before being recast.

“There are limits to how fast you can get these things done,” said Patrick Parenteau, a professor and senior counsel in the Environmental Advocacy Clinic at Vermont Law School. He added that completing a major federal rule-making can take two to three years. 

Parenteau noted that there are other types of measures Trump approved—executive orders, policy statements, guidance documents—that Biden will be able to undo “in a stroke of a pen.”

It’s also likely that some of the environmental rules that agencies do adopt under Biden will be met with lawsuits, landing them before a federal judiciary reshaped by Trump. The U.S. Supreme Court now has a durable conservative majority with three of the president’s appointees. He also appointed scores of judges—nearly 200 as of July—to lower federal courts.

“[Biden’s] got a hostile judiciary,” said Parenteau, “sitting there waiting for him.”

Trump’s deregulatory approach has supporters who are skeptical about the path Biden will chart on energy and the environment. 

Critics argue that President Obama’s administration went too far with measures like the “Waters of the United States” rule, which took a more assertive federal approach under the Clean Water Act regulating bodies of water like wetlands and streams. The same is true, some say, with the Clean Power Plan, which was designed to set limits on carbon pollution from the power sector.

Trump ordered a rewrite of the water rule and eventually narrowed its scope, delivering a win for stakeholders like farmers and real estate developers. The Trump administration also replaced the Clean Power Plan, which was tangled in court challenges, with a rule calling for power plant efficiency improvements, but no emissions limits.

All told, the Trump administration by early November had completed rollbacks of 84 environmental rules and another 20 such reversals were in progress, according to a New York Times analysis. Many of these changes were made by the U.S. Environmental Protection Agency, led in recent years by Trump appointee Andrew Wheeler, a former lobbyist for coal and mining interests.

To backers, Trump’s environmental policies represent a course correction, reining in federal overreach that stifled industry, infringed on state power and had other undesirable outcomes.

“I think the Trump administration can honestly be characterized as a conservative conservationist administration,” said Terry Anderson, a senior fellow at the Hoover Institution. “Far more federalism, far more respect for private property rights and far more interested in multiple-use management of public resources.”

Anderson said he expects Biden to go down a “liberal conservationist” path. “More national control, with more regulations of air, water and land ... He’s clearly going to come back to a more Obama approach to energy and climate, which says: ‘stop burning any fossil fuels.’”

Parenteau, the Vermont Law School professor, said Biden will have clear authority to impose more stringent standards for vehicle fuel economy and tailpipe emissions.

In a related development, General Motors last week said it was dropping its support for the Trump administration’s legal fight to prevent California from setting its own fuel economy standards. Mary Barra, General Motors' chief executive, also signaled the company’s support for Biden’s goal of expanded electric vehicle deployment.

Imposing new power plant regulations, along the lines of the Clean Power Plan, will likely be a much tougher lift for Biden than the auto rules, Parenteau said. But the power sector has changed since the Obama years, he noted, with market forces like cheap natural gas and a shift toward renewable fuels driving coal-fired power plant closures.

Parenteau also predicted it would be relatively straightforward for Biden to repeal changes the Trump administration made to Section 401 of the Clean Water Act, curtailing the authority of states to block projects like natural gas pipelines and coal shipping terminals. 

Democratic governors and others in states like New York and Washington voiced strong opposition to this regulatory revamp. The changes were favored by Republican leaders from places like Wyoming and Oklahoma that produce coal and natural gas.

Some changes expected from Biden could alter how the EPA operates. Janet McCabe, a law professor at Indiana University and former acting assistant administrator for the EPA’s Office of Air and Radiation under Obama, highlighted Trump administration efforts to change guidelines the agency uses when making rules as a cause for concern.

The focus here, she explained, has to do with the Trump administration moving to limit the science and studies the EPA can rely on when making rules and also reworking how the agency carries out cost-benefit analyses. The changes pushed by the administration in both areas, she said, are “hugely consequential” and strike at the agency’s “institutional underpinnings.”

“Those don’t apply to a single program. They potentially apply to every program,” McCabe added.

Even as Trump’s time in office wanes, federal agencies continue to press ahead on controversial environmental matters. For example, the administration is planning to conduct oil lease sales before the end of Trump’s term on a section of coastal land within Alaska’s Arctic National Wildlife Refuge. The area is an important habitat for polar bears and other wildlife.

Biden opposes drilling in the area and will likely have options to delay the leases. But fully blocking oil and gas development in the refuge could be difficult without legislation because it was opened to drilling under a provision, backed by Alaska lawmakers, that was inserted into the sweeping federal tax law that Republicans passed in late 2017.

Early in his term, in a move applauded by some lawmakers and county officials from Utah, Trump downsized two national monuments in the state—Bears Ears and Grand Staircase-Escalante—which were designated by Obama and former President Clinton during their terms. This opened land to mining and grazing, as well as activities like expanded motorized vehicle use and clearing trees and vegetation.

Backlash from tribal groups, outdoor enthusiasts and conservationists who supported the monuments—located in regions with red rock desert, rugged canyons and cliffs and Native American archeological sites—was intense. A court battle is still playing out.

Biden has indicated that he plans to take “immediate steps to reverse the Trump administration’s assaults” on the Utah monuments. But how that could unfold isn’t entirely clear when it comes to whether Biden will seek to restore the same designations that were in place before Trump shrank the monuments, or how courts will rule.

The president-elect has also called for banning new oil and gas permitting on federal public lands and offshore. And he has embraced the idea of conserving 30% of America’s lands and waters by 2030, a concept sometimes referred to by proponents as “30 by 30.”

“There’s momentum on developing a national biodiversity strategy and setting a clear national policy that we're going to protect biodiversity,” said Jacob Malcom, who leads Defenders of Wildlife’s Center for Conservation Innovation. Thirty by 30 is poised to be part of that strategy, he said, along with addressing other threats to wildlife, like pesticides, plastic waste and invasive species.

Experts across the political spectrum say the sharp changes in direction with environmental law between the Obama and Trump administrations, and that now look like they’re about to happen again with Biden, are a less than ideal way to conduct policy making.

“It’s dysfunctional,” Parenteau said of the swings. “It's bad government and environmental law is suffering. And because environmental law is suffering, the environment is suffering.”

“I’ve been doing this stuff for almost 50 years and it didn't start out that way,” he added, noting that when many of the nation’s bedrock environmental programs emerged around the 1970s, they had bipartisan support.

Anderson, at the Hoover Institution, said companies can typically live with environmental regulations, but that it’s harder for them to do so when rules are constantly changing. “In the long run, if we don’t control the whipsaw,” he said, “it will make it very difficult to get sensible environmental policy.” 

The Sierra Club’s Coequyt said he hopes the Trump administration’s aggressive push on environmental rollbacks was an anomaly. “The Trump administration brought in the industry advocates for complete deregulation,” he said. “It was a deeply cynical exercise.”

“Oftentimes you see some swinging back and forth,” he added, “but this is just very extreme.”

Bill Lucia is a senior reporter for Route Fifty and is based in Olympia, Washington.

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