In my last post, I began counting down the top ten most significant developments affecting regulatory policy and public protections from the past year. This post completes the task. The good news is some of these developments offer some hope on realizing the goals of CPR’s Policy for a Just America initiative: a sustainable future, a responsive government, and strong, effective protections for all people and the environment. Others, however, suggest that the task of realizing those goals will be an arduous one.
- Environmental justice takes its rightful place as a top-tier issue. At the beginning of the year, environmental justice rose to unprecedented prominence thanks to advocacy efforts behind the Green New Deal and the introduction of major environmental justice legislation by Reps. Donald McEachin (Va.) and Raúl Grijalva (Ariz.). The issue took on greater urgency in May, after the alleged murder of George Floyd by a Minnesota police officer. His death, and the ensuing public outcry, focused national attention on systemic racial injustice in the United States.
Since then, Biden tapped Sen. Kamala Harris, a noted environmental justice champion, as his running mate, and their transition team has made environmental justice a key part of its policy agenda. This has important regulatory implications. It should occasion a careful examination of how existing regulatory policies exacerbate or reinforce racial inequities, and it should prompt discussion about how regulation is essential to achieving our environmental justice goals.
- Administrative law continues to check Trump’s agenda. In the most significant regulatory policy case of this past term, the U.S. Supreme Court struck down the Trump administration’s sloppy attempt to rescind Obama’s program to allow young, unauthorized immigrants to remain in the country without immediate fear of deportation. The case, significant in its own right, also signaled how the Court might address other Trump-era policy changes.
In particular, the Court majority looked dimly on the Trump administration’s claims that policy changes to the program (known as Deferred Action on Childhood Arrivals, or DACA) were motivated by the U.S. Department of Homeland Security’s “new discovery” that it lacked the authority to issue the policy in the first place. The Trump Environmental Protection Agency (EPA), in particular, leaned heavily on this argument in cases now pending before lower federal courts. The Supreme Court also criticized the Trump administration for failing to properly analyze the reliance interests (i.e., the changes that people made to their lives, many of which are difficult to reverse, in response to DACA being implemented for several years) implicated in its abrupt policy change – an issue that will likely feature in other challenges to Trump policies. Of course, this issue cuts both ways: the Biden-Harris administration will need to do its “reliance interest” homework when undertaking its own policy changes.
- Trump rushes to enact midnight regulations. Even though Trump denies the results of the November election, his agencies are rushing to get as many regulations out the door as possible. Over the last few weeks, they have pushed through a broad swath of conservative policy priorities, including measures to lock in weak standards for particulate pollution, gut the Endangered Species Act, and allow more companies to use religion as an excuse to discriminate against LGBTQ+ people. The race is on to get more dangerous rules through White House review and published in the Federal Register, which would make them much more difficult for the Biden-Harris administration to reverse.
- Trump rushes to enact ’11 o’clock’ regulations. The “midnight” period between Election Day and Inauguration Day isn’t the only rulemaking rush hour; we saw a similar regulatory sprint earlier this year. The looming threat of the Congressional Review Act (CRA), which allows Congress to overturn agency rules using fast-track procedures, has inspired this “11 o’clock” rush. In the 115th Congress, Trump and his conservative allies on Capitol Hill set a new norm for the law’s abuse by using it to repeal 16 Obama-era rules.
As a result, Biden and other future presidents now has a strong incentive to finalize his biggest-ticket items before the CRA’s “lookback” period kicks in (a deadline that is essentially unknowable in advance but generally falls in April or May). If they don’t, these rules could be vulnerable to repeal. The Trump administration certainly acted with this deadline in mind, finalizing before April its rollback of the Obama-era greenhouse gas emissions standards for automobiles and other important public protections.
- ‘Rules on rules’ are the new conservative anti-safeguard strategy. Over the past year, many agencies were more focused on regulating themselves than the industries they are charged with overseeing. The EPA gained the most attention in this regard with its censored science and benefits-busting rules, which govern how it incorporates science and economic analysis into its regulatory decisions.
But others have also been busy. As noted in part one of this series, some agencies have adopted harmful new rules governing the development and use of guidance documents, which are primarily aimed at helping corporations understand regulations might apply to them. The U.S. Department of the Interior is hard at work on its own censored science rule, which would enable it, too, to disregard sound scientific information in its rulemaking process. And, in the most extreme case, the U.S. Department of Health and Human Services is working on a rule that would automatically “sunset” existing rules unless the relevant agency within the department conducts an elaborate review of the rule and elects to keep it in effect.
These regulatory policy developments reveal the massive damage the Trump administration wrought on the U.S. regulatory system over the last four years. The Biden-Harris administration can reverse this damage and should commit to doing so.
One critical step is rebuilding the regulatory system so that it is more responsive to the needs of the people. CPR’s Policy for a Just America initiative offers a comprehensive blueprint of reform proposals for doing just that. CPR staff and Member Scholars are already educating the Biden-Harris transition team about these reforms and advocating for them with progressive allies. In the months ahead, we will continue to push the Biden-Harris administration to adopt and implement these reforms as it looks to advance its policy agenda. Hopefully, at the end of next year, we will have more good stories on our list of developments affecting regulatory policy and public protections.