Congress has to fix Trump’s 11th-hour climate rules—before it’s too late

Editor’s note: This story was originally published by Yale Climate Connections, an initiative of the Yale Center for Environmental Communication

Much ink has been spilled in recent weeks, figuratively speaking, on what the Biden/Harris administration’s first 100 days in office reveal about its making climate change a top priority. Those words have flowed both at the this site and many other venues.

The Washington Post’s January 22 posting of “Tracking Biden’s environmental actions” is notable. Written by Post Pulitzer Prize-winners Juliet Eilperin and Brady Dennis, with graphics editing by John Muyskens, the piece compiles Trump administration environmental, conservation, and energy regulations and policies that the Biden team hopes to overturn or “unwind.”

“Biden can overturn some of them with a stroke of a pen,” they write. “Others will take years to undo, and some may never be reversed.”

Listing 64 air quality and greenhouse gas initiatives, they count one (stepping back into the Paris Climate Agreement) as having been overturned and another 21 as being “easy” to reverse. They score another 27 Trump actions as “medium”—requiring rewriting a regulation or pursuing a successful court action; and 15 as “difficult”—requiring lengthy rule-making process, legislation, or involved court action.

Clock is running for action on eleventh-hour rules. Along with the quickly-ticking clock in the White House on the administration’s first 100 days, let’s not lose sight of another clock that is also running on Capitol Hill. It is not necessarily identical, second-by-second, but just as relentless.

As is the case with so many others who have spent years working to bring climate change to the fore as a critical national and international issue, we are pleased with the day-one Biden Executive Order to re-enter the Paris Climate Agreement. Fortunately, given the din of opposition from the usual voices on Capitol Hill, that action does not require congressional approval. The United States will be officially back in on February 19th—and the global community can continue to welcome our return.

It’s no surprise that the fawning Senate majority of the 116th Congress did not exercise its right under the Congressional Review Act to un-do damaging Trump rules. But even with its razor-thin 50/50 split in the new Senate, the new 117th Congress is positioned to do so, without fear of having to overcome the 60-vote filibuster threshold. There is now, at least and at last, an opportunity during its first 60 legislative workdays for the Congress to conduct serious oversight of some of the especially offensive and glaring rules finalized in the waning days of the Trump administration and, if it chooses, send nullifying legislation to the new President for signing.

A few especially egregious examples were published in the Federal Register literally at the 11th hour:

• A January 6, 2021, rule that EPA “give greater consideration to studies where the underlying response data”—frequently involving confidential human health issues protected by HIPAA law being made publicly available. That would knee-cap important health-based rulemaking on many toxic air pollutants and other contaminants as well as the mental health risks from climate change.
• A January 7, 2021, EPA rule on the threshold for “significant pollution contributions” that would end application of the Clean Air Act to many non-electric power plants that are sources of important greenhouse gases.
• A January 13, 2021, EPA rule that piggy-backed onto the January 7 rule to bar future greenhouse gas regulations from applying to oil refineries, manufacturing, plants, and other facilities.

Appropriate Senate and House committees of jurisdiction now owe it to their air-breathing constituents to seek expert analyses as they review these and other Trump-era health and safety rules before the clock runs out on them for such oversight; and, where appropriate, to take action.

In some cases, nullification under the Congressional Review Act may be most appropriate and most expeditious. In some other cases, Biden administration executive action may be more appropriate. In still others, judicial action may be best.

The Trump administration itself, like the 115th Congress taking office in January 2017, proved to be a prodigious and, it must be acknowledged, an effective practitioner of the using of the Congressional Review Act. Its actions nullified Obama/Biden administration policies on climate change and other environmental and public health issues. That law, still untested in the courts, has been used only 17 times since it was enacted as part of the 1996 Newt Gingrich-inspired “Contract with America”; 16 of those came soon after the Trump administration took office.

There’s a saying familiar to us all: “What’s good for the goose is good for the gander.” It is especially apropos when the resulting actions enjoy bipartisan support from the public at large. This is a time when legislators should listen, and closely, to what their constituents are saying and expecting them to do.