Across the nation’s capital, federal regulators are in an all-out sprint, racing to finalize Biden administration climate initiatives touching everything from the cars Americans drive to the appliances they use.
The finish line is approaching fast: Anything that’s not completed by late spring could be easier for Congress to repeal or for Republican foes to undo if President Joe Biden loses reelection in November. Even federal funding earmarked for climate and clean energy programs under the Inflation Reduction Act could be clawed back by Congress or go unspent if the money isn’t doled out this year.
And if the White House changes hands, anything that’s not done by noon on Jan. 20, 2025 is toast.
“It’s go time for the administration,” said Josh Price, a director with Capstone, a Washington-based research group. The goal is to “get things out the door as soon as possible, whether that’s funding or final rules.”
Cementing regulations is key to securing Biden’s climate legacy and building on the sweeping IRA, which delivered hundreds of billions of dollars to encourage advanced manufacturing and clean energy. The planned environmental rules are meant to complement those incentives, and together they are critical to helping the US fulfill its Paris Agreement pledge to halve the country’s greenhouse gas emissions by the end of the decade.
Environmentalists are already antsy, with some fretting that high-profile initiatives won’t get finished in time, including vehicle standards, carbon rules for power plants and a possible Securities and Exchange Commission rule broadening companies’ climate reporting requirements.
The coming rules are essential for the administration to fulfill its promise to protect land and water, address climate change and keep families healthy, said Alexandra Adams, managing director for government affairs at the Natural Resources Defense Council. “It’s important they finalize them soon.”
Advocates witnessed how a Republican-controlled House and Senate combined forces with former President Donald Trump in 2017 to swiftly dismantle 14 Obama-era rules by leveraging special powers under a once-obscure law known as the Congressional Review Act. When roles reversed four years later, congressional Democrats teamed up with Biden and successfully wielded the CRA against three Trump-era regulations.
“The Biden administration can’t take the chance of that happening this year,” said James Goodwin, a senior policy analyst at the Center for Progressive Reform, a left-leaning research group.
Countdown to 60 days
The CRA risk is especially acute if Trump ousts Biden from the White House and Republicans gain control of the Senate. Under the CRA, Congress could advance resolutions overturning recently imposed regulations on simple majority votes, without the repeal measures getting blocked by filibusters or bottled up in committees. Most any major rule imposed in the previous 60 legislative days could be targeted — an uncertain timeline dictated by an unpredictable congressional calendar.
Based on Republican leaders’ current schedule for the House of Representatives this year, the 60-day window of vulnerability could open as early as May 22, according to calculations by Dan Goldbeck, director of regulatory policy at the American Action Forum, a right-leaning think tank. The message to agencies, Goldbeck says, is that if you want your work to endure, you’d better move sooner than later. “The end of spring or beginning of summer is probably your best chance to make sure you’re safe from that,” Goldbeck added.
The power of the CRA lies in its speed. Immediately after Congress advances a disapproval resolution and it’s signed by a president, the targeted resolution is invalidated, an approach that skates over a normally laborious and time-consuming administrative process. Undoing a regulation — like creating one in the first place — usually requires federal agencies to formally issue a proposal and take public comment on the plan before finalizing it. And then those final repeal rules can be challenged in federal court. The CRA resolutions carry no such legal jeopardy.
The Biden administration has front-loaded some of the most consequential policies. In the first quarter alone, it plans to finalize four dozen potentially major rules with a total price tag of about $250 billion, according to an American Action Forum analysis.
The nexus of the administration’s climate rulemaking is the Environmental Protection Agency, which is now putting the final touches on a plan to limit carbon dioxide emissions from cars and light trucks. The EPA is also aiming for an April rollout of a measure stifling the pollution from currently operating power plants.
But the work spans the federal government, with the Department of Energy looking to implement new efficiency requirements for distribution transformers used in the power system, and the Interior Department close to rolling out mandates for limiting natural gas venting, flaring and leaks on federal land. At the Treasury Department, regulators are inking policies dictating what types of hydrogen, renewable power and aviation fuel qualify for tax credits under the Inflation Reduction Act, with hundreds of billions of dollars in investment hanging in the balance.
Some of the measures have been years in the making — derailed by legal challenges and regulatory pivots by incoming presidents. The EPA’s power plant rule is actually the agency’s third attempt, following previous iterations advanced under Trump and former President Barack Obama. The Interior Department plan to corral natural gas leaks on federal lands had its genesis under Obama too.
The planned regulations have expansive reach. For instance, the auto emissions rule will shape decisions about what cars roll off assembly lines through at least 2032. Mistakes in the power plant mandates could imperil the nation’s electric reliability. “These are massive, complicated rules, with hundreds of pages of analysis,” Goldbeck said.
Some of the climate policy efforts stalled early in Biden’s presidency, as agencies first set out to unravel Trump administration rules before advancing replacements. In other cases, regulators waited for Congress to pass the Inflation Reduction Act, which bolstered the legal foundation for the power plant and natural gas waste rules while providing tax incentives meant to speed deployment of critical clean energy technology.
The Biden administration didn’t get “the best jump from the starting line,” Goodwin said. “The Trump administration left them a big mess, and they still haven’t cleaned it all up. The whole administrative state was booby-trapped when they came in.”
Federal regulators are toiling under a legal shadow, keenly aware their work is bound to be challenged in court later. And the Supreme Court’s conservative majority has already signaled skepticism toward what it views as agency overreach. In a 2022 case involving an earlier EPA power plant rule, the court found regulators must have clear congressional authorization before acting on “major questions.” The justices are now weighing a case that could upend the decades-long practice of deferring to federal agencies when they’re interpreting unclear laws.
At the EPA, regulators are working to ensure the rules are strong, durable and science-based, said agency spokesman Nick Conger. “We are crafting these rules in a way that follows the best available science, follows the law and will stand the test of time,” he said.
Faced with the legal uncertainty — and a dwindling clock — the best thing Biden administration officials can do right now is prioritize, even if it means sidelining some initiatives, said Lisa Heinzerling, an expert in environmental and administrative law who teaches at Georgetown University.
They won’t be able to accomplish everything, so they should “pick the things that are really consequential and do them,” she said, even if “that’s a really hard thing to do.”
Share This:
