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Rules that could undercut Biden's climate agenda likely to be nixed, expert says

Highlights

Rules may be targets for disapproval under CRA

EPA's Wheeler called them internal housekeeping measures

New York — An alleged Trump administration effort to tie the U.S. Environmental Protection Agency's hands regarding energy and climate rules under President-elect Joe Biden has run into a problem: a Democrat-controlled Senate.

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The EPA has finalized two major rules in the waning weeks of Donald Trump's presidency that could make future efforts to create carbon-cutting regulations for fossil fuel-fired power plants and other climate measures more difficult.

One is a final rule requiring the EPA to separately calculate the costs and benefits linked to reductions in pollutants directly targeted by Clean Air Act rules. Another final regulation would require the EPA to give more weight to scientific studies that publicly disclose underlying health data, a rule widely viewed by critics as an effort to limit the agency's use of science to strengthen public health safeguards.

But both rules were finalized within 60 legislative days of the 116th Congress ending, making them likely targets for disapproval under the Congressional Review Act, or CRA, according to one regulatory expert.

'Biggest loophole invented'

Outgoing EPA Administrator Andrew Wheeler has claimed both regulations are not subject to the CRA, which requires simple majority votes in both houses of the U.S. Congress and a presidential signature.

Following a pair of U.S. Senate victories by Democratic candidates in Georgia, Democrats now control the U.S. House of Representatives and hold effective control over a 50-50 split Senate with Vice President-elect Kamala Harris able to cast the tie-breaking vote.

Wheeler has claimed both regulations at issue are not subject to CRA disapproval because they rest on the EPA's so-called "housekeeping authority" and deal with the agency's own internal procedures.

"This is an internal housekeeping regulation ... and so the Congressional Review Act is not applicable," Wheeler said Jan. 5 during an event hosted by the libertarian-leaning Competitive Enterprise Institute.

But that view was disputed by Richard Revesz, director of the New York University Law School's Institute for Policy Integrity.

"The decision-maker on what is subject to the CRA is a majority of the House and a majority of the Senate, not Administrator Wheeler," Revesz, who was himself rumored to be on Biden's shortlist for EPA administrator, said Jan. 8 in an interview.

Revesz noted that, if implemented, both rules could effectively result in tens of thousands of avoidable deaths per year by thwarting EPA efforts to tighten air pollution regulations.

"If you take a hugely significant rule that, as I said, could lead to tens of thousands of additional premature deaths a year, and you just label it a housekeeping rule so it's not subject to the CRA, this would be like the biggest loophole invented in mankind," Revesz said.

While the statute would require Senate Democrats to dedicate valuable floor time to debating CRA resolutions, Revesz said he expects resolutions disapproving the science transparency and cost-benefit rules to come early in the 117th Congress.

'Good cause'

Even if the rules somehow are not disapproved through the CRA, they could still be struck down or remanded on procedural grounds, experts said.

Both rules were made effective immediately upon publication in the Federal Register, with the EPA citing "good cause" authority to circumvent the Administrative Procedure Act's requirement for rules to be finalized with a delayed effective date to give regulated parties time to adjust.

A draft version of the science transparency rule sent to the White House for interagency review originally had a 90-day delayed effective date, noted Amit Narang, a regulatory policy advocate with the consumer advocacy group Public Citizen.

"It seems clear that EPA did not believe that this rule could take effect immediately despite it being a procedural rule when they sent the draft rule" to the White House, Narang said in an interview.

Narang also noted the science transparency rule stands in contrast to a Jan. 7 final rule aimed at reducing childhood exposure to lead dust, which has a 60-day delayed effective date.

"In the stuff that they really care about that are actual political priorities that they actually want to lock in, you'll see a 'good cause' exemption and it's worth comparing that to the ones that they're not actually trying to lock in, like the lead rule," Narang said.

Meanwhile, Revesz noted that the EPA claimed "good cause" authority in making a recent final regulation for aircraft greenhouse gas emissions effective immediately. Environmental groups had urged the EPA to strengthen emission standards beyond the status quo, but ultimately the agency declined to do so.

"These rules have been around for years," Revesz said. "If they're so important and urgent, you've got to get them done. It's obviously just an effort to hamper the next administration, and that is not 'good cause.'"