White House Issues Regulatory Freeze, Orders Analysis and Rollback of Trump Regulations
January 22, 2021|Jeff Davis
On his first day in office, President Biden and his staff signed a series of orders intended to freeze, and where possible, roll back Trump-era regulations across the board.
Regulatory freeze. New White House chief of staff Ron Klain sent all federal agencies a memo directing them not to “propose or issue” any rule in any manner, including sending it to the Federal Register, “until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule.” Where possible, any rules sent to the Federal Register but not yet published as of January 20 (which means the January 21 issue, because of the inauguration holiday) should be withdrawn.
Then, for any rules that have already been published in the Register but are not yet effective, Klain’s memo asks agencies to “consider postponing the rules’ effective dates for 60 days from the date of this memorandum…for the purpose of reviewing any questions of fact, law, and policy the rules may raise.” Klain suggests opening a 30-day comment period, consider pending petitions for reconsideration, and, if necessary, extending the effective date past 60 days.
This is not a new idea. Four years ago, Trump’s first White House chief of staff Rence Priebus sent an almost identical memo to federal agencies.
Repeal of Trump regulatory process changes. Biden signed a new executive order that repeals a half-dozen Trump-era executive orders that were designed to reduce overall federal regulation. The Trump EOs repealed by the new EO are:
- Executive Order 13771 of January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs)
- Executive Order 13777 of February 24, 2017 (Enforcing the Regulatory Reform Agenda)
- Executive Order 13875 of June 14, 2019 (Evaluating and Improving the Utility of Federal Advisory Committees)
- Executive Order 13891 of October 9, 2019 (Promoting the Rule of Law Through Improved Agency Guidance Documents)
- Executive Order 13892 of October 9, 2019 (Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication)
- Executive Order 13893 of October 10, 2019 (Increasing Government Accountability for Administrative Actions by Reinvigorating Administrative PAYGO)
Biden then signed a different executive order directing the Office of Management and Budget to “begin a process with the goal of producing a set of recommendations for improving and modernizing regulatory review. These recommendations should provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations. The recommendations should also include proposals that would ensure that regulatory review serves as a tool to affirmatively promote regulations that advance these values. These recommendations should be informed by public engagement with relevant stakeholders.”
Repeal of Trump infrastructure project delivery expedition rules. Yet another new Biden executive order repeals Trump Executive Order 13807 of August 15, 2017. Also known as the “One Federal Decision” rule (and, seriously, that sounds like the worst boy-band name ever), EO 13807 encouraged federal agencies to cooperate permitting for major infrastructure projects by developing a single permitting timetable, a single EIS, and a single ROD, with the final authorization decisions being made within 90 days of ROD issuance.
After EO 13807 was issued, all the affected federal agencies then spent eight arduous months negotiating a 25-page Memorandum of Understanding implementing the One Federal Decision cooperative process, which is presumably out the window now as well.
In the absence of EO 13807, Biden’s new order just says that “The Director of OMB and the Chair of the Council on Environmental Quality shall jointly consider whether to recommend that a replacement order be issued.”
Biden’s new order also repeals Executive Order 13766 of January 24, 2017 (Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects) and Executive Order 13927 of June 4, 2020 (Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities).
“Scrutiny” of Trump fuel economy standards. That same new executive order that killed One Federal Decision also orders all federal departments and agencies “consider suspending, revising, or rescinding” any Trump-era regulation if it conflicts with any of a series of climate, environmental, and equity policies laid out in section 1 of the order. But the order specifically singles out a few rules, including the Trump automotive fuel economy rules (the “SAFE Vehicles Rule, part 1 and part 2), for special scrutiny.
Biden’s new order directs the Department of Transportation and the EPA, “as appropriate and consistent with applicable law, [to] consider publishing for notice and comment a proposed rule suspending, revising, or rescinding” the Trump fuel economy rules, by April 2021 in the case of part 1 and by July 2021 in the case of part 2. The scrutiny of part 2 is supposed to “consider the views of representatives from labor unions, States, and industry.”
This is easier said than done. Generally speaking, a final rule that was imposed by going through the cumbersome Administrative Procedure Act hurdles (proposed rule, public comment period, review of all public comments, revision into final rule, waiting period, effective date) can only be undone by going through the same procedure. This can take years. In the case of the SAFE Vehicles Rule, the proposed rule was published in August 2018 and the final rule was not effective until June 2020. Undoing it can’t happen overnight.
There had been rumors that this order would also single out the Trump Administration’s rule about liquid natural gas transportation by rail for special scrutiny, but the LNG rule was not mentioned specifically in the final Biden order.
Monetizing GHG costs in all federal rules and actions. Section 5 of that same Biden order establishes a multi-agency Working Group on the Social Cost of Greenhouse Gases, to include USDOT. By February 20, this working group is ordered to produce interim values for the social cost of carbon, nitrous oxide, and methane, “which agencies shall use when monetizing the value of changes in greenhouse gas emissions resulting from regulations and other relevant agency actions until final values are published.” Final values would then be produced by January 2022.
The values would then be updated regularly “to ensure that these costs are based on the best available economics and science” and “to revise methodologies…to the extent that current methodologies do not adequately take account of climate risk, environmental justice, and intergenerational equity.”
Keystone XL Pipeline permit revocation. Section 6 of that new Biden order revokes the permit for construction of the US-Canada Keystone XL pipeline, much to the irritation of the Canadian government and certain U.S. labor unions.
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