Behind the scenes —
There’s a lot going on in addition to some of Biden’s high-profile moves.
The series of executive orders signed by Joe Biden on his first evening in office included a heavy focus on environmental regulations. Some of the high-profile actions had been signaled in advance—we’re back in the Paris Agreement! The Keystone pipeline’s been put on indefinite hold!
But the suite of executive orders includes a long list that targets plenty of the changes Trump made in energy and environmental policies, many of which will have more subtle but significant effects of how the United States does business. Many of those make major changes, in some cases by eliminating policies adopted during the Trump years, a number of which we covered at the time. So, we’ve attempted to take a comprehensive look at Biden’s actions and their potential impacts.
Laws, rules, and policies
Environmental and energy regulations are set through three main mechanisms. The first is by specific laws, which would require the cooperation of both houses of Congress to change. Next are also more general laws, like the Clean Air and Clean Water Acts. These enable regulations to be put in place via a formal rule-making process run by the agencies of the executive branch. This process involves soliciting public feedback, incorporating economic considerations, and so on, a process that typically takes anywhere from eight months to over a year. Finally, the executive branch can set policies to cover details not spelled out by the law or the rule, such as how to handle things like deadlines and enforcement details.
It’s these latter two categories where President Biden can act immediately, since they’re left entirely to the executive branch, although subject to legal review. And that’s precisely what he’s done, by ordering reviews of existing rules established during the Trump administration and changing myriad policies put in place by prior executive orders.
The Congressional Review Act also allows federal rules that have been enacted within the past 60 days to be overturned by a joint resolution of the two houses of Congress. The clock is still running on a number of Trump rules and, with Democrats controlling both houses, there’s a chance we’ll see action here. But on his first day in office, Biden was taking no chances, and he targeted these rules along with a list of many that are outside the 60-day window.
Trump-era policies often attempted to eliminate existing policies and cripple any future adoption of new ones. Perhaps the most striking of these was in Executive Order 13771, which flatly declared that any new regulation could only be adopted if two existing regulations were eliminated. The order gave no consideration to details like the total number of regulations that were available to eliminate or whether existing regulations were effective and/or efficient. Furthermore, the net economic impact on those regulated by the new and canceled rules had to be zero.
Another executive order established “regulatory reform officers” in every agency. They were supposed to help in the identification of regulations that were out-of-date or costly, then target those for elimination. Another order demanded that guidance documents, which agencies issue in order to help companies comply with regulations, could never contain phrasing that might be interpreted as creating regulations. Order 13892 required that any enforcement of regulations had to wait to allow those subject to the enforcement time to respond to the proposed action.
All of these executive orders are now gone. Citing the need for policies that tackle climate change and the pandemic, Biden’s new executive order describes them as “harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront these problems” in justifying their elimination.
More difficult to deal with are actions that have gone through the full federal rule-making process. These include a number of efforts intended to make future rules more difficult to adopt. Notable among them:
- The EPA decided that incidental benefits of pollution limits wouldn’t count toward the consideration of costs and benefits of regulations. In other words, if a regulation cost $100 in cleanup costs but avoided $100,000,000 in health care costs, only the first figure would matter during the rule-making process.
- The EPA has changed its standards of evidence for studies on pollution harm so that epidemiological evidence on its own would not be sufficient to trigger regulation.
- Not content with that, the agency has determined that epidemiological evidence that incorporates patient data can’t be used if privacy concerns keep the underlying data from being made public.
Biden cannot unilaterally eliminate these rules. But all agency heads have now been directed to review any rule adopted during the entire Trump administration to determine whether they run contrary to Biden’s policy goals. And the most recently adopted rules are subject to an executive order to agency heads that directs them to suspend said rules and reopen them for public comment as a route to enabling a replacement rule to be formulated. Any rules that are currently tied up in court will see the Justice Department ask for the case to be suspended while the relevant agencies revisit the rules.
Beyond these efforts, the early executive orders target a lot of efforts by Trump to block Obama-era policies. These include a new look at Trump’s effort to weaken Obama-era fuel-economy standards but go well beyond that. Other targets include Trump’s elimination of Obama-era rules on methane emissions from fossil fuel extraction and the Obama-era Waters of the USA rules. In their initial formulation, these treated things like small ponds and seasonal streams as part of a single, interlinked water system that was regulated under the Clean Water Act. Trump reversed the rule; Biden will consider reviving it. Fossil fuel extraction in the Arctic National Wildlife Refuge was prohibited under Obama, opened for leasing by Trump, and will likely be blocked again by Biden.
Fossil fuel extraction plays a major role in the policies Biden is reconsidering or reversing. One Trump executive order attempted to limit the use of the Clean Water Act to block energy development, the ability of state laws to limit export of fossil fuels, and—most bizarrely for a party that was supposedly enthused about the free market—targeted retirement funds that were limiting their holdings in the energy sector. That order has been eliminated in its entirely.
Trump also pushed efforts to favor energy development at the expense of the application of laws such as the Clean Water Act, National Environmental Policy Act, and Endangered Species Act. Biden has reversed the policies that resulted. Biden also targeted by orders that promote offshore drilling in the Gulf of Mexico and the Arctic and another that ordered a review of whether national monuments got in the way of energy development.
Trump actions to limit the size of several of these national monuments are also being reversed. These include Bears Ears and Grand Staircase-Escalante in the Southwest, as well as the Northeast Canyons and Seamounts offshore reserve off the coast of Maine.
Trump’s somewhat bizarre objections to efficiency rules for lightbulbs and appliances (notably toilets) led to the elimination of some of those. They’ll be back now.
Get some science back
Other actions taken so far suggest that Biden continues to be serious about his promise to bring science back into policy decisions. Trump had issued an executive order that targeted advisory committees, one of the ways that policymakers in the executive branch can solicit input from scientists (as well as those in industry and elsewhere). In recent years, there have typically been roughly a thousand advisory committees active at any point. Trump had issued an executive order that sought a rapid elimination of about a third of those and set a long-term target of having only 300 active. Those limits are gone.
Trump also blocked the use of a figure called the social cost of carbon, which attempts to use the future consequences of climate change to determine the cost of present-day emissions. Biden isn’t just reversing that decision—he’s expanding it so that it’s applied to two additional greenhouse gasses: methane and nitrous oxide. His executive order establishes an interagency working group that’s charged with producing an initial estimate within 30 days. This will allow the entire federal government to perform cost-benefit analyses for climate-related regulations, something that’s often a legal requirement.
To regulate or not?
Many of the other executive orders revoked by Biden were cases when Trump directed agencies to re-evaluate existing regulations to determine if they were efficient, cost-effective, overlapped with other regulations, or had simply been obviated by scientific or market developments. There was nothing obviously problematic with many aspects of these orders, which makes their elimination by Biden seem somewhat capricious—why would he object to the identification of ineffective regulations?
It’s important to recognize that, despite the apparently neutral language, the orders were meant to enable the Trump administration to eliminate regulations with no regard for their effectiveness. Through their elimination, Biden will free up staff to pursue new policy initiatives and restore government capacity that has been lost during the previous four years. How you feel about that will likely be determined by your attitudes toward regulations in general.
Overall, many of the decisions here are basic policy reversals—decisions about whether to limit Clean Water Act enforcement in order to foster energy development, for example. But underlying most of them is a clear policy vision that places addressing climate change as a very high priority and attempts to redirect existing laws to better reflect both that priority and the rapidly changing economic reality that makes doing so much less challenging than it was during the Obama administration.
With control of both houses of Congress, Biden should eventually be able to get new laws passed that allow these policy objectives to be pursued more effectively. But his opening actions indicate he’s not willing to wait for that or chance the prospect of gridlock dominating the capital for the next two years.