The Biden administration has been on a climate and environment regulatory spree over the last three months, which interest groups say is directly intended to safeguard the president’s agenda against a possible Donald Trump presidency.
Of the 76 economically significant rules finalized by the administration since the start of 2024, 35 of them are related to the climate and environment. In April, the administration finalized 42 rules — the most any president has completed in a single month since the Reagan era, according to Sarah Hay, a policy analyst at the George Washington University Regulatory Studies Center. Usually, administrations average about four or five final rules monthly.
The D.C. machine of lobbyists, advocates and lawyers has cranked into a higher gear to deal with the growing stack of new rules in preparation for the inevitable onslaught of related lawsuits.
“I think we’ll see challenges to most or all of these major rules within the next several months,” said Ted Kelly, a senior attorney at the Environmental Defense Fund. “There will be a lot of litigation work in court to do for groups like ours, and it’s a heavy lift, so it’s something we’ve been preparing for.”
The speed at which the Biden administration is working through these regulations — covering issues including power plants, emissions, conservation and air and water quality — has angered Republicans and moderate allies like Sen. Joe Manchin of West Virginia.
Manchin called Biden’s team a “radical climate staff” in a speech last week, and again to NOTUS, criticizing the way the administration is implementing the Inflation Reduction Act, which he was central in making law. He offered amicus brief support to companies filing lawsuits against the rules.
The combined effects of many of the new rules will likely accelerate the closure of coal plants, make building some new natural gas plants more expensive and difficult and push consumers toward electric vehicles, all outcomes that concern or anger most conservative groups and Republican politicians.
While a rush of rulemaking usually happens in the “midnight” period of a presidential administration, Biden’s team has moved up the timeline to well before the election.
The Trump administration’s creativity in undoing Obama-era regulations served as a warning. In 2017, Republicans used the Congressional Review Act, which gives Congress the power to essentially overturn any recently finalized rules with a simple majority in the Senate, so long as the president signs off.
“It stands to reason why the administration is aiming to finalize as many rules as possible,” said Nick Loris, the vice president of public policy at the conservative climate advocacy group C3 Solutions.
Congress had only made use of the CRA one time in the law’s 30-year history before Trump was elected; then in 2017, Republicans overturned 15 Obama-era rules.
“It seems like Congress is getting more comfortable with using the CRA as a tool,” Hay said.
A second Trump administration would likely employ similar tactics, Hay said. Biden can veto any CRA vote now (and has already done so), but any rules published during the last 60 days while Congress is in session would be vulnerable should Trump win reelection.
“The administration is prioritizing CRA-proofing its top priority regulations,” Hay said.
Undoing final rules without the CRA could take years for each regulation and would require new public comment processes.
The actual deadline for the Biden administration to avoid that possibility is fudgy — conservative estimates currently sit around May 22. The congressional calendar can change, but the administration is unlikely to publish any more economically significant finalized rules before that deadline, according to Susan Dudley, a former administrator of the Office of Information and Regulatory Affairs.
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Even without more final rules coming, the next few weeks will be a particularly difficult crunch time for the Federal Register’s office as they rush to get the finalized rules officially published in time. A rule can sit at the register’s office for weeks if it is particularly long or laden with tables and charts, like the Environmental Protection Agency power plant rules, according to Dudley. While those rules were finalized and announced on April 25, they have yet to be published on the federal register.
For conservatives like Loris, this pile of new climate regulations creates a burden on companies, especially because the rules could be modified or overturned in court regardless of who wins in November. The threat of looming fights “results in this regulatory ping-pong and a lot of investment uncertainty, not just with the regulations themselves, but what’s going to happen with the courts,” he said.
But for the Biden White House, its climate legacy is at stake. The IRA and infrastructure bill unlocked billions of dollars in funds for projects that could put the United States on track to reduce its greenhouse gas emissions by at least 50% in 2030, but only the new rules will determine whether that possibility actually becomes reality.
That setup is what frustrates Loris. While he believes many of these energy and environment problems need to be solved, he’s irritated that Congress left so much of the “how” up to the agencies.
“My preference would be more legislation that actually looks at some of these issues and tries to address it in a more pragmatic way,” Loris said. “But I don’t think that would happen in a second Trump administration or a second Biden administration.”
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Anna Kramer is a reporter at NOTUS.