Climate March photo by Edward Kimmel
How can we roll back the Trump-era rollbacks of environmental laws? The last six months of the Trump Administration kept EPIC busy. As his poll numbers dipped and his reelection appeared more distant, the administration moved into rush mode to get through a large suite of environmental rollbacks: severe reductions in the amount of “Critical Habitat” designated for northern spotted owls (more on EPIC’s efforts to overturn that here); changes to the National Environmental Policy Act, our bedrock environmental law that demands review of foreseeable environmental impacts (which EPIC is litigating); and delisting the gray wolf from the Endangered Species Act (which we are also litigating!).
These 11th hour changes will outlive the Trump administration, although thankfully, there are numerous ways that Congress and President Joe Biden can undo the damage. Here are three ways how.
1. New Executive Orders or Rulemaking
The Trump Administration was notoriously bad at actually passing legislation. Rather, it relied on executive orders and regulations to do the dirty work. Overturning an executive order is easy: the Biden Administration can just issue a new executive order. This work is thankfully already done.
To overturn a regulation takes more work and time. All changes to regulations, either to pass, amend, or reverse, have to be completed pursuant to the Administrative Procedure Act (except through two exceptions discussed below). The Act requires, among other things, that draft changes to our regulations must be published in the Federal Register and that the public be offered an opportunity to comment on the proposed changes, and that the government respond generally to the comments received. Passing regulations takes time, up to years to complete. Additionally, changes through the Administrative Procedure Act are subject to legal challenge. Any substantial change will be challenged by pro-extraction, anti-environmental interest groups who benefited from the old Trump regulation. (As EPIC is challenging a number of Trump-era rules.)
Undoing any Trump-era regulation through this route will take time and is subject to litigation. For those reviews, two ways that largely avoid the process and procedure of the Administrative Procedure Act have drawn particular interest.
2. Congressional Review Act
The Congressional Review Act is a 1996 law that provides that Congress can review and overturn recently-passed regulations issued by the Executive Branch. Under the Congressional Review Act, Congress has 60 legislative days, not calendar days, to review regulations after they are finalized. If both chambers of Congress vote by simple majority to overturn, the regulation is repealed and the Executive Branch cannot pass a substantially similar regulation in the future.
Prior to the Trump Administration, the Congressional Review Act was only successfully invoked once in 2001 concerning a regulation from the Department of Labor concerning ergonomics. Congress and the Trump Administration, however, found it a useful cudgel to invalidate 14 Obama-era regulations shortly after taking power, including axing a regulation from the Bureau of Land Management rule for land use planning for BLM lands and a rule intended to protect streams from mountaintop removal coal mining.
Congress can and should use the same process to roll back Trump’s last minute rollbacks.
3. Invalidate Regulations through Litigation
Regulations are subject to the Administrative Procedure Act, and one core component of that law is that laws cannot be arbitrary, capricious, or otherwise not in accordance with the law. As discussed before, substantial new regulatory changes are routinely challenged. Most Trump-era rules have already been challenged in court and those that haven’t, like the northern spotted owl critical habitat rule, will be challenged once procedural obstacles have been overcome.
A new Biden administration can also invalidate regulations by settling ongoing or future litigation. If the new administration does not believe that there are substantial legal grounds to defend the regulation or if it thinks that it might lose in court, the administration can settle legal efforts against it and invalidate the operational effect of that legislation (if such a settlement is approved by the court). Typically, this will not sweep the regulation from the books, but through settlement, the government will no longer enforce the rule but will engage in a new rulemaking effort to replace or amend the rule.
Conservative legal scholars panned such settlements during the Obama administration as “sue-and-settle” litigation, where it was alleged that environmental groups were in cahoots with the administration to force sweeping regulatory changes through litigation, bypassing the Administrative Procedure Act. (If only!) And during the Trump Administration, this opposition to settlements affecting regulations was mysteriously quiet. Expect to hear complaints again emerge if the Biden administration recognizes the illegality of any of the past administration’s rulemaking efforts.