With Democratic Senate Majority, Biden Has Power to Quickly Undo Trump Regulatory Rollbacks

This piece was first published in Forbes on January 8 2020. It is reprinted with their permission.

This week’s Democratic victories in Georgia’s Senate runoff elections provide incoming President Joe Biden with a tool to relatively quickly do away with several of President Trump’s rollbacks of high-profile environmental protections in the energy industry. 

A key question is whether Biden will choose to make use of the tool, called the Congressional Review Act, which gives a new President the power to eliminate, with the aid of a friendly Senate majority, any regulation promulgated by agencies—such as the Environmental Protection Agency and the Department of the Interior during the final 60 legislative days of the outgoing Congress.  Trump rules dating to August 21, 2020 or later could fall under the CRA.

Trump regulations that are vulnerable to rollback include the Interior Department’s September undoing of a rule limiting methane leaks from oil and gas production on federal land (a related EPA rollback of methane rules in August falls outside the CRA window).  Also vulnerable is the EPA’s recent adoption of a “science transparency” rule that disallows the agency from taking into account in its rulemaking health studies that do not make underlying data public. Such data has provided the EPA with support for major regulations, including limits on mercury emissions from the electric power industry.  

Even the Department of Energy’s September rollback of water efficiency standards for shower heads and appliances could conceivably fall under the CRA axe.  Several additional regulatory weakenings, ranging from Forest Service environmental impact review to limits on industrial soot, could fall within the rollback window as well.

The CRA was enacted as law in 1996 under then Senate Majority Leader Newt Gingrich, during Bill Clinton’s presidency. George W. Bush used the CRA once, in 2001, to undo a regulation related to workplace ergonomics. Barack Obama never wielded the CRA, despite entering office with a friendly Senate majority in 2009.

Yet Trump broke precedent by using the CRA 16 times to rollback Obama-era regulations, including the Department of the Interior’s Stream Protection Rule limiting coal companies from dumping mining waste into waterways.  

Any incoming administration faces a tradeoff when invoking the CRA. First and foremost, a new president needs to prioritize the Senate’s limited time in the early days of his presidency.  Just as the CRA only applies to rules finalized in the final days of a prior administration, the tool similarly can only be used during the first 60 days of a new Congress. 

“The CRA is a very attractive tool,” says Richard Revesz of the New York University School of Law. “It would make sense to be able to just clear the underbrush of some of this really, really bad regulatory policy, quickly.”

“But there may be some tradeoff between Senate time devoted to the CRA and Senate time devoted to confirming executive branch officials.”

Each CRA disapproval resolution must be debated on the Senate floor for at least ten hours, occupying precious time that might otherwise be devoted by the Senate to consider and approve a slate of 1,200 federal appointees, or to work on economic stimulus.  

Trump opened Pandora’s box with his heavy-handed use of the CRA, setting a precedent for future Presidents to do the same. In practical effect, the CRA can make the last months of any President’s term moot from the perspective of regulation where the opposing party subsequently comes into power. Clinton, Bush, and Obama may have recognized the risk to their own legacies when they largely chose to bypass the CRA during their terms. 

And the CRA could limit Biden’s future regulatory efforts. When a rule is eliminated through the CRA, no substantially similar rule can easily be introduced to take its place.

It’s notable that an unusually high percentage of regulations promulgated by Trump’s agencies have been turned over in the courts due to sloppy legal work. In fact, Trump era regulations have failed in 80% of legal proceedings where they have been challenged, according to the Institute for Policy Integrity at New York University School of Law. That compares to a 70% historic success rate for previous administrations’ regulations. 

In short, many of the Trump administration’s most recent regulatory actions may not survive legal challenge in the court if Biden foregoes the CRA.

Regardless, Biden has yet to announce if or how he’ll use the Congressional Review Act.   With a slim friendly majority in the Senate there’s no guarantee that he’ll find 50 senators who’d support his use of the act in all cases. Yet Biden has hailed his record of reaching across the aisle. That experience may come in handy should he choose to make use of the CRA.

Andy Stone

Energy Policy Now Host and Producer

Andy Stone is producer and host of Energy Policy Now, the Kleinman Center’s podcast series. He previously worked in business planning with PJM Interconnection and was a senior energy reporter at Forbes Magazine.