Biden and the Environment: The First 100 Days
Dan Farber, Legal Planet Blog, UC Berkeley Law School, April 29, 2021
Tomorrow marks Biden’s first 100 days in office. He’s appointed a great climate team and is negotiating an infrastructure bill that focuses on climate change. With luck, those actions will produce major environmental gains down the road. There are also some solid gains in the form of actions that have already come to fruition. Here’s where things stand.
Question 1:
Executive orders. Trump seemed to delight in issuing anti-environmental executive orders. All of those are gone now, replaced with Biden’s environment-friendly substitute. In one important move, Biden restored Obama’s estimate of the social cost of carbon, which Trump had slashed.
1. What is an Executive Order? What is the legal authority for Biden to remove and replace all of Trump’s environmental Executive Orders in the first 100 days?
Question 2:
Foreign affairs. Here the big news is that Biden has taken the U.S. back into the Paris Agreement and has submitted a U.S. commitment cut emissions by 50% from 2005 levels in the next ten years. He has also canceled Trump’s approval of the Keystone XL oil pipeline.
2. What is the legal authority allowing Biden to re-join the Paris Agreement and cancel the Keystone XL pipeline so quickly?
Question 3:
Legislation. Biden’s COVID stimulus plan mostly focused on getting money into a wide swathe of the economy. It did provide $30 billion to help hard-hit mass transit systems get through the pandemic. It also made money available to state and local governments to spend on infrastructure such as water and sewage systems. That can be considered climate change adaptation and should also improve drinking water quality and reduce water pollution.
The Senate voted yesterday to eliminate a Trump rollback of regulations on methane emissions from the oil and gas industry. The House is expected to follow suit.
3. What is the legal difference between the actions in this “legislation” section and the previous questions about Executive Orders or Foreign Affairs? What is the legal authority for this legislation to be enacted?
Question 4:
Timing issues. Some of Trump’s proposed regulatory rollbacks weren’t final when Biden took office and those are now dead.
4. Explain the legal reasons or process for the quick reversal of the Trump regulatory rollbacks that were not final when Biden took office.
Question 5:
Biden has successfully delayed some rollbacks from going into effect, providing more time to undo them. Similarly, Biden has paused the issuance of new oil and gas leases on public lands. How long that pause will last remains to be seen.
5. What is the legal reason that the administration is able to delay or pause some regulations and administrative processes? Why does it need to more time to “undo” some rollbacks from going into effect?
Question 6:
Regulatory rollbacks. …With a bit of help from the courts in some cases, however, Biden has been able to move more quickly to ax some of Trump’s handiwork. Here’s the list:
The Trump EPA had authorized delays in reducing methane emissions from landfills. The Biden EPA successfully got a court to vacate the Trump action.
A Trump rule was designed to limit the public health information EPA could consider in setting new air pollution standards. The rule was vacated by court. EPA didn’t appeal, so the court ruling is final.
Another Trump rule blocked emissions standards for greenhouse gases except for electricity generators and transportation. This rule was vacated by a court at EPA’s request.
6. What is the legal reason that allowed the Biden administration to get “a bit of help from the courts” in undoing some of the Trump administration’s regulations or rollbacks? What must be true about the Trump administration’s rules (generally, don’t research these specific examples)?
Question 7:
What’s next? Biden has already begun the cumbersome administrative process to eliminate Trump’s remaining rollbacks, often with the goal of implementing much stronger regulations than Obama.
7. What must be the status of the remaining Trump administration rollbacks that necessitate the “cumbersome administrative process”? Describe the basic steps of administrative process for reversing the remaining Trump administration’s regulatory rollbacks. Why is it “cumbersome”?
Question 8:
To have the impact that Biden is hoping for, he will have to take actions an order of magnitude beyond what he’s done so far. In particular, he’s going to need to get some major funding for climate action through a closely divided Congress. The rest of what he’s doing is important, but the money has the potential to be the real game-changer.
Stay tuned for the next 100 days.
8. As a matter of environmental policy, which types of policies are anticipated if “money has the potential to be a real game-changer”? Briefly explain why. (Go to the policy toolkit!)