President Biden Moves Quickly to Unleash Regulatory Juggernaut

Not being distracted by the usual enjoyable folderol of inaugural parades and balls meant that President Joe Biden had time in his first day in office to unleash the regulatory juggernaut he promised during his campaign. First, he signed a letter informing the United Nations Secretary General that the United States would rejoin the Paris climate treaty.

Withdrawing from the Paris treaty was the most consequential deregulatory decision made by President Trump, but unfortunately, he did so in the least satisfactory way: He accepted the fiction that Paris was merely an executive international agreement and that a president could therefore withdraw according to the procedures specified in the agreement. Had he followed CEI’s advice and recognized that Paris is indeed a treaty, he would have sent it to the Senate for its advice. As an executive agreement, Biden can rejoin without first obtaining the Senate’s consent by a two-thirds vote.

Under the terms of the treaty, parties must make more ambitious commitments to reduce emissions every five years. The treaty went into effect in 2016, so second-round commitments are due this year. It will be interesting to see what the Biden administration comes up with.

Next, President Biden signed an executive order (EO) on “Revocation of Certain Executive Orders Concerning Federal Regulation.” It repeals President Trump’s Executive Orders 13771 on reducing regulation and controlling regulatory costs, 13777 on enforcing the regulatory reform agenda, 13875 on improving federal advisory committees, 13891 and 13892 on improving the use of agency guidance documents, and 13893 on improving government accountability. 

The real doozy is Biden’s “Executive Order on Protecting Public Health and Environment and Restoring Science to Tackle the Climate Crisis.” It begins with some vague language about goals, orders all departments and agencies “to immediately commence work to confront the climate crisis,” and then enumerates a long list of objectives:

It is, therefore, the policy of my Administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.

The EO then orders heads of all agencies to “immediately review all existing regulations, orders, guidance documents, policies, and any other similar agency actions promulgated, issued, or adopted between January 20, 2017 and January 20, 2021, that are or may be inconsistent with, or present obstacles to” these policies. It directs agency heads to suspend, revise, or rescind any offending agency actions during the Trump administration.

A number of specific Trump deregulatory actions are then listed with deadlines for completing reviews. These include: the methane rule; the two-part SAFE Vehicle Rule (the less ambitious vehicle fuel economy rule and the withdrawal of the California waiver); several Department of Energy appliance and building energy-efficiency standards; the Environmental Protection Agency’s (EPA) greenhouse gas rules for power plants; the benefit-cost rule for the Clean Air Act; and the EPA’s scientific transparency rule.

The deadlines specified in the EO are ambitious. For example, the EPA must propose a new methane rule for the oil and gas sector by September. Jonathan Brightbill, who served as principal deputy assistant attorney general for the Energy and Natural Resources Division during most of the Trump administration and ended it as acting assistant AG, told me: “These deadlines are very aggressive. They can only be met by recycling Obama-era justifications, short-circuiting notice and comment and interagency review, or both. The Supreme Court’s DACA decision, in which Chief Justice Roberts voted with the liberal Justices, will now challenge the new administration.” A New York Times story headlined, “Restoring Rules Rolled Back by Trump Could Take Years,” supports Brightbill’s analysis.

In addition, the EO cancels the permit for the Keystone XL Pipeline, orders a moratorium on all activities related to implementing the 2017 directive by Congress to open the coastal plain of the Arctic National Wildlife Refuge to oil and gas drilling, reinstates the moratorium on Arctic offshore drilling, and orders a review of President Trump’s orders to make three National Monuments smaller.

What to do with the Social Cost of Greenhouse Gases takes up a good part of the EO. It reinstitutes an interagency working group and orders it to publish interim Social Costs of Carbon, Nitrous Oxide, and Methane within 30 days and final Costs by January 2022. It also requires that the group provide recommendations by September 1 “regarding areas of decision-making, budgeting, and procurement by the Federal Government where the SCC, SCN, and SCM should be applied.”

The EO concludes by revoking a number of other Trump EOs and actions relating to environmental permitting. Notably, it rescinds the White House Council on Environmental Quality’s (CEQ) National Environmental Policy Act guidance document on how to consider greenhouse gas emissions and climate change in environmental permitting decisions and re-\instates the Obama CEQ’s guidance document.

President Biden also sent a memorandum on his first day in office to all heads of executive departments and agencies on Modernizing Regulatory Review. CEI’s Wayne Crews posted his initial thoughts here.

What do all these initial actions add up to? One insightful perspective was provided by a headline in the Los Angeles Times: “Make America California Again? That’s Biden’s Plan.” Surprisingly for that paper, the story is not altogether positive.

There’s more to come this week. A Biden transition document, “Early Calendar of Themed Days,” lists climate as the theme for January 27. Actions listed include an “Omnibus Domestic and International Climate EO” and the announcement of a “U. S.-hosted Climate Leaders’ Summit,” which is appropriately being scheduled on the 151st anniversary of Lenin’s birth, April 22.