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Prospect of Biden win highlights vulnerability of 4 major power, climate rules

On a phone call with reporters in early June, U.S. Environmental Protection Agency Administrator Andrew Wheeler indicated that a steady drumbeat of proposed regulations and final rules will continue as President Donald Trump nears the end of his first term.

"I'll be back with you again at our next announcement, which shouldn't be too long," Wheeler said after describing a proposal that would dramatically alter how the EPA accounts for fine particulate matter reductions in Clean Air Act rulemakings. "We keep cranking things out."

A review of the Trump EPA's major electric utility-sector and climate-related rules, however, shows that virtually all of those actions could be unwound if former Vice President Joe Biden wins the presidency in November.

As the EPA enters the final stretch of the first Trump administration, the president's signature energy- and climate-related rules are still being litigated before the U.S. Court of Appeals for the District of Columbia Circuit, a powerful judicial body that often has the final say on federal agencies' actions.

Those regulations include a major rewrite of rules surrounding the 50-year-old National Environmental Policy Act, the EPA's replacement for the Obama-era Clean Power Plan, a rollback of Obama-era clean car standards, and a rule rescinding the legal basis for an Obama-era rule regulating coal- and oil-fired power plants for toxic mercury emissions.

The D.C. Circuit is expected to hear oral arguments in challenges to these replacement rules sometime in the fall, with oral arguments in a lawsuit targeting the ACE rule recently scheduled for Oct. 8. Decisions in all three high-profile legal battles could come after Biden potentially takes the oath of office in January 2021.

"These are complicated cases and it typically takes the D.C. Circuit at least six months to decide them, so they're probably pending when the new administration comes into office," Richard Revesz, director of New York University Law School's Institute for Policy Integrity, said in an interview.

A new Biden administration would likely ask the D.C. Circuit to put the suits on hold on the grounds that the new president wants to review and modify the rules, Revesz said, noting that Trump did the same thing with the Clean Power Plan shortly after being sworn into office in 2017.

"Because these are such big picture rules, very quickly the new administration will start the process of repealing and replacing them with rules that actually do what the statutes require, which is to be protective of human health and the environment," Revesz said.

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'Tricky legal and strategic issues'

After Trump took office in 2017, Republicans in the 115th Congress employed the Congressional Review Act, or CRA, to disapprove more than a dozen Obama administration rules, including environmental rules targeting coal producers and oil and gas companies.

The CRA gives lawmakers 60 full legislative days after Congress receives a new regulation to submit a resolution to overturn that rule. Only a simple majority in the U.S. House of Representatives and Senate must approve a CRA resolution for the measure to pass and head to the president's desk. If Congress adjourns less than 60 full legislative days after it receives a rule, lawmakers have another 60 days to take action starting from the 15th session day after the new Congress convenes.

However, congressional Democrats may be far more hesitant to use the CRA to disapprove Trump EPA rules if a Biden victory coincides with Democrats seizing control of the Senate and maintaining their majority in the House, according to regulatory experts.

The CRA also prohibits agencies from issuing a new rule that is "substantially the same" without receiving further authorization from Congress, noted Jeff Holmstead, former head of the EPA's Office of Air and Regulation in the George W. Bush administration.

"Are they going to inadvertently prohibit a Biden administration from doing a rule that basically covers the same subject matter," Holmstead asked in an interview. "I think those are going to be tricky legal and strategic issues, and of course we'll have to see which rules come out at the very end of the Trump administration. I think there are going to be some serious discussions within the administration if in fact there is a Biden administration."

A recent Clean Air Act cost-benefit proposal and the EPA's proposed science transparency rule, both of which would limit the agency's ability to account for the health effects of air pollution produced by power plants, could become prime targets for disapproval through the CRA, said Amit Narang, a regulatory policy advocate at the consumer advocacy group Public Citizen. The EPA indicated in its latest regulatory agenda that it expects to finalize the rules in November and December, respectively.

"In those situations, it might be fairly clear what the legal effect and ramifications of a successful CRA challenge would be," Narang said. "If the regulatory status quo was that the agency had not regulated in the space prior to the rule, then the application of the CRA would be fairly clean in that it will just erase the rule off the books."

A spokesperson for the Biden campaign did not respond to multiple requests for comment.

'They're going to have to prioritize'

Another option could emerge if a Biden win coincides with Democratic majorities in Congress — the passage of major new climate legislation that may impact how the withdrawal of Trump EPA rules plays out, said Michael Gerrard, director of Columbia University's Sabin Center for Climate Change Law.

If Democrats lack 60 votes in the Senate, they may nix the filibuster rule requiring a 60-vote threshold to advance legislation, he said. "If that happens, we may all of a sudden see a wave of new environmental legislation," Gerrard said.

In January, Democrats on the House Committee on Energy and Commerce unveiled a 622-page draft climate bill that would add a new title to the Clean Air Act requiring states to submit to the EPA "state climate plans." The approach is similar to one envisioned in the Clean Power Plan, which has now been replaced by the Trump EPA's far more limited ACE rule.

Democrats on the House Select Committee on the Climate Crisis in June released their own 547-page climate policy blueprint. The set of policy proposals envisions the Federal Energy Regulatory Commission issuing rules to achieve a 100% carbon-free power grid by 2040 while the EPA focuses on transportation-sector emissions and environmental justice.

On July 14, Biden went even further by announcing a four-year, $2 trillion climate plan that calls for completely decarbonizing the U.S. power mix by 2035. The plan is far more aggressive than the Obama-era Clean Power Plan, which aimed to cut power-sector CO2 emission 32% compared with 2005 levels by 2030.

More generally, the EPA under a Biden administration will likely face staffing constraints that require the agency to decide which rules it wants to replace first, agency observers said. The Trump administration has prioritized buyouts for EPA career staff amid a hiring freeze in an effort to shrink the agency's workforce.

"They're really down to a skeleton crew because as people left they weren't replaced," said Caitlin McCoy, a staff attorney at Harvard's Environmental and Energy Law Program. "At this point, there is going to be a lag in what they might like to do and what they're going to be able to do as they try to re-staff up to capacity, and so they are going to have to prioritize."

'Shockingly poor analysis'

Even if Trump wins re-election, many of his administration's rules could still be turned back by the courts.

While the Trump EPA has so far focused on relaxing or withdrawing Obama-era environmental rules, it has largely failed to defend its actions in court cases that have reached a legal conclusion, Policy Integrity's Revesz noted.

The institute maintains a regularly updated litigation tracker that recently showed that during Trump's first term federal agencies have been successful in just 12 out of 106 legal challenges that have reached a conclusion, an 11% win rate. That compares to a historical win rate for executive branch agencies of about 70%, Revesz said. And in court rulings specifically involving the EPA, the Trump administration's latest win rate sits just below 8%, according to Policy Integrity's tracker.

"Most of these losses are attributable to shockingly poor analysis, which the courts have recognized and have often used as the reason for setting aside the rules," Revesz said.

But in an email, EPA spokesperson James Hewitt expressed confidence that the Trump EPA's rules will be upheld. He specifically pointed to the U.S. Supreme Court's stay of the Clean Power Plan and uncertainty over the now-replaced Clean Water Rule as evidence that the EPA exceeded its statutory authority under the Obama-Biden administration.

"The Trump Administration's EPA has been committed to advancing sensible regulations and replacement plans that protect the environment and human health, grow the economy, and will stand the test of time in court," Hewitt said.

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