Looking Ahead

With the victory of President-elect Joe Biden and Vice President-elect Kamala Harris, the coming months will be a watershed in the evolution of environmental law and policy. If there had been a second Trump term, EPA would have defended its rule rollbacks and looked to the courts to uphold the agency’s deregulatory project as EPA continued to weaken rules and its own legal powers and institutional capacities. Meanwhile, both EPA and the Department of the Interior would have continued to prioritize the administration’s political agenda over public concerns, science, and technical expertise. A Biden/Harris EPA will have to grapple with the legacy of the first term of the Trump administration while changing the course of environmental regulation, spurred on to fulfill the president-elect’s pledges to drive progress on public health and environmental protection, climate change and environmental justice. 

This page illuminates the Trump administration’s legacy, which, though it will shape the course of environmental law and policy over the next four years, it will also fade as the incoming Biden/Harris administration seizes the initiative in making renewed environmental progress. Check back regularly as we update this page with new, forward-looking analyses.

Legal Impacts of the Trump’s Administration

Three Years After— Where Does Implementation of the Lautenberg Act Stand? Kevin McLean

The former Associate General Counsel for EPA’s Pesticides and Toxic Substances Law Office, explores the history and implementation of the original TSCA, the revisions made to TSCA in 2016 by the Lautenberg Act, and EPA’s experience in implementing the Lautenberg Act after its passage in June 2016.

EPA’s Final Methane Emissions Rules Roll Back Standards and Statutory Authority Hana Vizcarra

The EPA released its final rescission and revision of the 2012 and 2016 VOC and methane standards for oil and gas facilities. The two actions, referred to as the Review Rule and Reconsideration Rule, fully rescind VOC and methane standards for transmission and storage and methane standards for all segments and revise standards for VOC emissions in the production and processing segments. The Review Rule is in effect. The rule breaks with decades of EPA interpretation of the Clean Air Act to take a stance that could limit EPA’s ability to regulate GHG emissions from any source. The Reconsideration Rule will go into effect on Nov. 16, 2020.

Final Rollback of Fuel Economy & GHG Standards for Cars and Light Trucks Caitlin McCoy

In spring 2020, EPA and National Highway Traffic Safety Administration concluded their joint rule making process for the Safer, Affordable, Fuel-Efficient (SAFE) Vehicles Rule. The agencies finalized two rules. First, a legal interpretation rule that preempts and withdraws California’s waiver, granted under section 209 of the Clean Air Act, and reinterprets section 177 to bar other states from following California’s GHG standards. Second, a rule that weakens the GHG standards and sets new fuel economy standards for 2021-2026. In this post, we detail the climate impact of these changes, explain the legal framework, and describe ongoing litigation challenging the rules.

EPA’s House of Cards: the Affordable Clean Energy Rule Joe Goffman and Caitlin McCoy

EPA’s Repeal of the Clean Power Plan and Affordable Clean Energy rule employ a legally risky strategy to curtail agency authority under the Clean Air Act. EPA argues that its interpretation of subsections 111(a)(1) and (d) of the Clean Air Act reflects the “plain meaning” of “unambiguous” statutory language. EPA is pursuing a high risk/high reward approach that could affect agency authority far into the future, but it may have been forced to take this approach by the rulemaking record. The D.C. Circuit is considering the case right now and the decision could change the way the Clean Air Act is interpreted. Even if the court does not get a chance to rule in the case, a future administration will have to address the legal interpretations finalized in these rules.

How Statutory Interpretation of the Clean Air Act Serves the Trump Administration’s Deregulatory Agenda Joe Goffman and Laura Bloomer

The Trump EPA is using the rollbacks to advance new interpretations of the Clean Air Act that restrict EPA’s statutory authority to address climate change and other air pollution challenges. These new legal interpretations threaten EPA’s ability to deliver needed reductions in air pollution. They run counter to EPA and the CAA’s historic path, which for decades advanced along with technology and science, resulting in more effective environmental protection over time. This deliberate transformation of EPA’s understanding of its legal mandate may be longer-lasting than other deregulatory efforts. A new administration could rebuild a strong regulatory regime and could commit to re-investing in EPA’s scientific expertise. Certain changes to EPA’s interpretation of the law, however, could complicate efforts to revive stronger regulations and create permanent constraints on EPA’s authority to combat environmental threats.

Institutional Undermining under Trump

Managing Public Lands under the Trump Administration and Beyond Laura Bloomer, Peter Daniels, Eric Wriston, & Joseph Goffman

The Department of Interior has rolled back regulations designed to protect endangered and threatened species as well as grazing and land use reforms, offered unprecedented areas of public lands for oil and gas development, and attempted to shrink and weaken protections for national monuments. This direction is likely to continue should President Trump win a second term. If a Biden/Harris administration takes office, DOI will need to reverse some of the Trump administration’s management decisions in order to back away from the energy dominance agenda and restore Interior’s capacities. This will include prioritizing conservation and science-based decision making, accelerating clean energy projects, and restoring the US’s relationship with tribal nations.

40 Law Scholars Oppose EPA’s Changes to the Ozone Standards-Setting and Science-Advising Process

In August, EPA proposed to leave unchanged the current National Ambient Air Quality Standards. The proposal defied accumulating scientific evidence that tightening the standards would be critical to providing adequate protection of public health, as the Clean Air Act requires. Despite the science, this outcome was foreseeable: EPA’s political leadership spent more than two years making changes to the composition and functioning of the Clean Air Science Advisory Committee and the NAAQS process itself that from the beginning were clearly designed to serve this deregulatory outcome.

Recovery Process

How to Undo the Environmental Regulatory Rollbacks Cole Jermyn (JD ’21) and Laura Bloomer

The Trump administration’s rollbacks didn’t happen overnight and a new administration will have to follow to regulatory procedures. In this white paper, Cole and Laura detail the legal processes and standards the Biden administration will need to follow to modify the Trump-era regulatory rollbacks, from final rules to executive orders and guidance memos.

A Clean Energy Agenda Runs Through the Federal Energy Regulatory Commission Ari Peskoe

The clean energy transition inevitably runs through FERC. Its sweeping authority over the power sector’s interstate operations and planning drives investment and shapes the industry. Ari explains how FERC will be an indispensable player in the Biden/Harris Administration’s clean energy agenda.

The Congressional Review Act’s Legal Uncertainties Kevin Chen (JD ’20)

With the 2020 election approaching, the Trump Administration is now racing to finalize agency rules before the deadline after which they could be subject to Congressional Review Act (CRA) disapproval by the next Congress. But even if some new rules could be repealed using the CRA, Congress should be aware of the potential pitfalls arising out of the CRA’s inherent legal uncertainties. This is a selection from a paper by Kevin on Why Congress Should Repeal the Congressional Review Act.

Weighing the Risks of Using the CRA to Restore EPA’s Methane Standards Ari Sillman (JD ‘21)

If control of the Senate shifts after the November 2020 election, the new Congress will likely consider using the Congressional Review Act to undo some of the Trump administration’s most harmful deregulatory actions. The EPA’s elimination of methane emissions standards for oil and gas operations is a prime target. This piece explores the risks of using the CRA to restore methane standards and the likelihood for success, particularly addressing how the CRA’s “substantially similar” bar could impact future regulation of methane emissions.

Breaking New Ground in Environmental Protection

President-Elect Biden Supports a “Carbon Enforcement Mechanism” – Could that Mean a Price on Carbon? Martin Levy, JD 2020

As part of his climate agenda, President-elect Joe Biden promises to pass legislation that “establishes an enforcement mechanism” to curb harmful greenhouse gas emissions. What this means is far from clear. Biden expressed support for a price on carbon emissions during the primary, but Biden’s team has recently indicated he prefers a legislative approach centered on economic stimulus, clean energy investments, and sector-specific decarbonizations standards. Meanwhile, clean energy advocates are also pushing sector-specific decarbonization standards—such as a national standard for the power sector—instead of economy-wide carbon emissions fees. Martin Levy explores the legal and political terrain of this controversial issue.

Next Generation Compliance: Environmental Regulation for the Modern Era Cynthia Giles

Most environmental policymakers believe that compliance with environmental rules is high and assume that enforcement can take care of the violators. Both beliefs are wrong. An examination of the evidence shows that serious violations of environmental regulations are widespread and have real consequences for people’s health. Rule design is by far the most important driver of compliance results; enforcement, by itself, will never close the huge compliance gap created by poorly constructed regulations. This series of white papers by guest author Cynthia Giles reveals the widespread noncompliance with environmental rules and the paradigm shift necessary to turn that around.

Immediate Executive Action: Unexplored Options for Addressing Climate Change Under the Clean Air Act Grace Weatherall

While President Obama’s EPA rolled out a series of rules addressing greenhouse gas (GHG) emissions under various CAA programs, two significant unexplored avenues for GHG regulation under the CAA remain: (1) regulating GHGs as a criteria pollutant under the NAAQS program; and (2) regulating GHGs under the § 115 provision on international air pollution. Various climate advocates have long promoted EPA exploration of these approaches, because each offers a vast regulatory potential. Each, if successfully implemented, could not only address greenhouse gas emissions from almost all sectors of the economy, but also curtail pollution from existing sources—dual objectives that no other GHG regulation program under the CAA could achieve in tandem.

The States as Green New Deal Policy Labs Caitlin McCoy

The Green New Deal resolution’s climate provisions illustrate the dramatic scope and scale of the change needed to curb greenhouse gas emissions. The resolution envisions a ten-year period of economic and societal change to begin making progress on its climate goals. The first step toward building a scheme that involves all levels of government is to assess the policy structures that already exist. States and local governments have been working to achieve similar objectives for decades, serving as a proving ground for policy tools that could be used to reach the resolution’s targets.