The Outlook for Federal Environmental Regulation and Litigation on the Eve of the 2020 Election


Elections have consequences. The 2016 election brought dramatic change to the federal regulatory agenda in particular. The Obama Administration issued myriad rules of significant scope and impact, and engaged in many other executive actions during its eight years in office, but Republican control of the White House and both houses of the 115th Congress beginning in January 2017 afforded an opportunity for a widespread rollback, curtailment, or delayed implementation of many Obama-era regulations.

In the realm of federal administrative law, the consequences of the 2020 general election could be similarly dramatic and immediate or largely a continuation of the deregulatory direction of the past four years. For that reason, we offer this election-eve overview of what four possible election scenarios could mean for those most directly affected by regulation in the spheres of environmental, natural resources, and energy law and policy.

The Context: Environmental Law in the Era of Legislative Stalemate

Though difficult to believe in the fractious world of current national politics, federal environmental legislation once enjoyed wide bipartisan support.[1] One measure of the increasing politicization and polarization of environmental policy is that, with the possible exception of amendments to the Toxic Substances Control Act in 2016,[2] no major comprehensive environmental legislation has been enacted since the 1990 Clean Air Act Amendments.[3]

As a result, particularly over the past twenty years and the last three Administrations, the locus of federal environmental policy development has shifted almost entirely from the halls of Congress to the administrative agencies and the courts. As evidenced by the policy reversals in the transition from the Obama Administration to the Trump Administration, this newer paradigm is anything but stable.

We do not attempt in this article to predict the specific policy choices Americans can expect in a second Trump term or in a Biden Administration. Instead, we lay out the broad outlines of how regulatory processes may be moved forward, slowed, stopped or even reversed under each of four different scenarios.

The Potential Scenarios

Without pretense of being professional pollsters, on the eve of the election it seems quite unlikely that the House of Representatives will change hands, and so we frame our analysis based on the following reasonably possible scenarios for the nation’s governance as of January 2021:

Scenario 1: President Trump retains the White House; Republicans retain control of the Senate.

Scenario 2: President Trump retains the White House; Democrats gain control of the Senate.

Scenario 3: Joe Biden is elected President; Republicans retain control of the Senate.

Scenario 4: Joe Biden is elected President; Democrats gain control of the Senate.


Scenarios 1 and 2: President Trump and Regulatory Continuity

Scenarios 1 and 2 do not differ significantly where administrative law is concerned. If President Trump begins a second term even with Democrats in control of both houses of the next Congress, his Administration nonetheless can proceed with its regulatory agenda, including moving forward with new rules, converting currently proposed rules to final ones, and defending its final initiatives in the federal courts. A cross-section of just a few examples of the environmental rulemaking agenda from his first term is set forth in the following table:

Rule

Agency

P/F*

Federal

Register

Date

Published

Scientific Transparency Rule

EPA

P

83 FR 18768

04/30/2018

NSPS for Greenhouse Gas Emissions from New and Modified Coal-fired Power Plants

EPA

P

83 FR 65424

12/20/2018

Endangered Species Act Rule Revisions

FWS/NMFS

F

84 FR 45020

08/27/2019

FWS

84 FR 44753

FWS/NMFS

84 FR 44976

Definition of “Take” under Migratory Bird Treaty Act

FWS

P

85 FR 5915

02/3/2020

Waters of the United States Rule

EPA/USACE

F

85 FR 22250

04/21/2020

Sport Hunting and Trapping in Alaskan National Preserves

NPS

F

85 FR 35181

06/09/2020

NEPA Rule Revisions

CEQ

F

85 FR 43304

07/16/2020

Energy Conservation Program Appliance Standards

DOE/EERE

F

85 FR 50937

08/19/2020

Expansion of National Forest System lands available for oil and gas leasing

USDA-Forest Service

P

85 FR 54311

09/01/2020

Alaska NFS Roadless Rule

USDA-Forest Service

F

85 FR 68688

10/29/2020

*Proposed (P) or Final (F)

With full control of Congress, Democrats certainly could have greater impact on the Trump Administration in a second term via other means, of course, particularly through budgets, oversight and Senate confirmation of executive branch nominees (notwithstanding the current Administration’s penchant for the use of “Acting” officials, which presumably would carry over to a second term). Given the President’s veto authority, however, the potential for congressional Democrats to successfully overturn Trump Administration rules using their authority under the Congressional Review Act (discussed below) would not be meaningfully increased even with control of both the House and the Senate.

This is not to say that President Trump’s regulatory priorities would proceed unimpeded. Virtually every rulemaking affecting environmental, energy and natural resources policy is being or will be litigated. For example, the Council on Environmental Quality’s revision of rules implementing the National Environmental Policy Act has been challenged in multiple lawsuits across the county.[4] Importantly, however, in a second term, the Trump Administration would continue to control the defense of those suits and the regulatory process upon any remand from the courts. That control greatly enhances the likelihood that the Trump Administration could successfully complete rulemakings and resolve litigation brought to challenge them before leaving office.

Scenario 3: Biden Administration; Divided Congress

Under Scenario 3, the Biden Administration can take a range of actions – well-established in prior presidential transitions – to stymie or undo regulatory actions completed or begun under the Trump Administration. It is almost certain, for example, that the new Administration would immediately order executive agencies to at least temporarily suspend work on proposed rulemakings, or even those that are final but have not yet taken effect, allowing time for the new Administration’s political appointees – once confirmed by the Senate – to re-examine each proposal.

Even those rules or executive actions that have gone final and are effective as of Inauguration Day are likely to be reversed, superseded, or significantly curtailed given the recent history of presidential transitions. The general rule of thumb is that the same process that was required to undertake the administrative action in the first instance must also be used to amend, supersede, or repeal it. For example, to rescind or modify a “legislative” rule that was promulgated through Notice and Comment rulemaking pursuant to the Administrative Procedure Act[5] requires following that same procedure.[6] This is the tack the Trump Administration took in adopting a new and wholly different National Park Service rule on sport hunting and trapping in national preserves in Alaska, listed in the table above.[7] That rule removed prohibitions put in place in a 2015 final rule[8] of the Obama Administration. Agency initiatives of broad applicability that do not qualify as “legislative” rules, such as “interpretive rules,” procedural rules, and policy guidance, need not follow the relatively strict Notice and Comment requirements of the APA, and thus, may be rescinded or amended much more quickly and easily. At the same time, although agencies may shift or even reverse course on a policy when a new Administration assumes office, they need to provide a reasoned explanation for the change in addition to abiding by the requisite process.[9]

Another set of tools widely used by new Administrations to effect changes in environmental policy is a panoply of various Executive Actions, in both the domestic and international spheres. Although the President cannot use an Executive Order to rescind a rule, Executive Orders can be used to revoke prior Executive Orders and Presidential Memoranda, to rescind reports and guidance documents, and to instruct agencies to re-examine both proposed and final rules. In Executive Order 13783, issued on March 28, 2017,[10] President Trump revoked President Obama’s Executive Order 13653 (“Preparing the United States for the Impacts of Climate Change”), climate-related Presidential Memoranda, CEQ guidance on consideration of greenhouse gas emissions and climate change in reviews under NEPA, and several reports issued by President Obama’s White House. Executive Order 13783 also ordered the Administrator of EPA to “immediately take all steps necessary to review . . . and, if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the Obama EPA’s “Clean Power Plan”[11] and a related rule.[12] The Executive Order provided a basis for EPA to request that the U.S. Court of Appeals for the D.C. Circuit postpone issuance of a decision on a challenge to the Clean Power Rule. Ultimately, EPA rescinded the Clean Power Plan, simultaneously issuing its own “Affordable Clean Energy Rule.”[13]

Unlike the agency actions addressed above, a president’s actions are not subject to judicial review under the APA, although a plaintiff may ask a court to resolve a constitutional challenge to such actions.[14]

Scenario 4: Biden Administration; Democratic Congress

With Democratic control of the House and Senate, a prospective Biden Administration of course would still have all the tools available under Scenario 3. Scenario 4, however, adds the Congressional Review Act as an option for rolling back a subset of the most recently adopted Trump Administration regulations. Although beyond the scope of this article, Scenario 4 – at least insofar as Senate Democrats were to change Senate rules to do away with the legislative filibuster – also would pave the way for potentially significant new legislation.

Enacted in 1996, the Congressional Review Act[15] requires that a federal agency promulgating a rule[16] must submit a copy of the rule to each house of Congress and to the Comptroller General.[17] Congress may vote by resolution to disapprove the rule. The President can veto a joint resolution of disapproval; the veto is then subject to congressional override (requiring a two-thirds majority in each chamber). For that reason, the Congressional Review Act is particularly suited to the transition in Scenario 4: a party with control the House and Senate gains control of the White House from the opposing party.

In its 24 years of existence, the Congressional Review Act has been used to overturn only 17 rules. Sixteen of those disapprovals came during the 115th Congress, when a newly inaugurated President Trump and a Republican-controlled Congress sought to undo the late-term issuance of final rules by the Obama Administration. For example, the Bureau of Land Management’s Resource Management Plan regulations,[18] adopted as “midnight” regulations in the weeks before President Obama’s second term ended, were overturned under the Act.[19]

The most complex aspect of the Congressional Review Act is the time limit for passage of a Joint Resolution of Disapproval.[20] The Joint Resolution of Disapproval must be introduced during a period of 60 “days of continuous session” following receipt of the final rule by the Congress as prescribed by the Act,[21] but if the Congress adjourns sine die before this 60-day period has run in both chambers, it “resets” on the fifteenth day of the following Congress.[22] Because the calendars of each congressional body are subject to change, in particular during the upcoming lame-duck session, it isn’t possible to pinpoint which “rules” will be subject to congressional disapproval under the Act in the new Congress. At this juncture, it appears that rules promulgated as early as late May or early June 2020 could potentially fall within the ambit of the “lookback” period at the start of the 117th Congress.

An additional effect of “disapproval” under the Congressional Review Act is that it restricts the ability of agencies to resurrect disapproved rules or even those that are substantially the same “unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”[23] In other words, while a Biden Administration in theory could dust off a copy of the Obama Administration’s Clean Power Plan and issue it as a proposed rule, without new legislative authorization, it could not do the same with any of the four Obama-era rules within the environmental arena that the 115th Congress overturned. 

 

Conclusion

In a Pew Research survey published in August,[24] 79 percent of registered voters said the economy will be very important to them in deciding how to vote in this year’s presidential election. That was followed by health care (68 percent), Supreme Court appointments (64 percent) and the Coronavirus outbreak (62 percent). The only environmental issue in the top twelve, placing eleventh, was climate change (42 percent).

But even if environmental issues won’t determine the outcome of the election, the outcome of the election certainly will determine the future direction of environmental regulation or deregulation, and affect the litigation that virtually inevitably ensues upon any rulemaking initiatives in this arena.

For more information on this topic, please contact Richard Allan or Stephen Odell.


[1] “Environmental policy is partisan. It wasn’t always”, Washington Post, June 2, 2014.

[2] Frank R. Lautenberg Chemical Safety for the 21st Century Act, Pub. L. 114-182 (June 22, 2016).

[3] Pub. L. 101–549 (Nov. 15, 1990).

[4] See, e.g., Wild Virginia v. CEQ, Dkt. No. 20-45 (W.D. Va.).

[5] 5 U.S.C. § 553.

[6] Perez v. Mortgage Bankers Assn., 575 U.S. 92, 101 (2015).

[7] As noted previously, as is par for the course, the rule change elicited the virtually inevitable complaint shortly thereafter to challenge its validity. Alaska Wildlife Alliance v. Bernhardt, Case No. 3:20-cv-00209-TMB (D. Alaska).

[8] See 80 Fed. Reg. 64,325 (Oct. 23, 2015).

[9] Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016).

[10] Executive Order 13,783, “Presidential Executive Order on Promoting Energy Independence and Economic Growth,” Mar. 28, 2017.

[11] “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,661 (Oct. 23, 2015).

[12] “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Souces: Electric Utility Generating Units,” 80 Fed. Reg. 64,509 (October 23, 2015).

[13] 84 Fed. Reg. 32,520 (July 8, 2019).

[14] Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992).

[15] 5 U.S.C. §§ 801 et seq.

[16] Notably, the Congressional Review Act incorporates the broad definition of “rule” in the federal Administrative Procedure Act. See 5 U.S.C. § 804(3), incorporating definition from 5 U.S.C. § 551.

[17] The U.S. Government Accountability Office maintains a database of rules submitted to it pursuant to Congressional Review Act at: https://www.gao.gov/legal/other-legal-work/congressional-review-act#database

[18] 81 Fed. Reg. 89,580 (Dec. 12, 2016).

[19] Pub. L. 115-12 (Mar. 27, 2017).

[20] The Congressional Research Service prepared a good analysis during the lame duck session of 2016: “Agency Final Rules Submitted on or After June 13, 2016, May Be Subject to Disapproval by the 115th Congress,” CRS Insight, Dec. 15, 2016.

[21] 5 U.S.C. § 802(a).

[22] 5 U.S.C. § 801(d)(1).

[23] 5 U.S.C. § 801(b)(2).

[24] https://www.pewresearch.org/politics/2020/08/13/important-issues-in-the-2020-election/

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