For four years, the Trump administration carried out a full-fledged assault on the environment and public health with nearly 100 attacks on everything from clean air, water, and environmental justice to endangered wildlife, fuel-efficiency standards, energy-saving light bulbs, low-flow showerheads, and even science itself.
In his first 100 days, President Biden made quick and admirable progress countering some of those attacks, in addition to placing the climate crisis, green job creation, and environmental justice at the top of his administration’s priority list. There’s still a long way to go before we can recover our public policies from Trump’s reckless onslaught, but thankfully, the Biden administration has a number of tools at its disposal to start the healing process.
Here’s a glimpse of what de-Trumpifying the country’s environmental protections may look like over the next 3.5 years, in order of complexity.
Simple (Most of the Time): Presidential Actions
Executive actions—a category that includes executive orders (EO), memoranda, and proclamations—are carried out with the stroke of the president’s pen. In his single term as president, Trump dished out quite a few of them—including withdrawing the United States from the Paris Agreement, expediting approval of the Dakota Access Pipeline, and abandoning an Obama-era calculation on the social cost of carbon pollution.
While some of Trump’s executive actions attacking environmental and public health protections were struck down as unlawful while he was still in office, several damaging ones remain in place, such as an EO shortcutting the federal permitting process for cross-border pipelines. Biden, however, now holds the power of the executive branch and has wasted no time wielding it.
On day one, President Biden took more than a dozen executive actions, which included re-entering the United States into the Paris Agreement, denying the permit for the Keystone XL pipeline, and directing all federal agencies to prioritize climate change. Biden has also ordered federal agencies to review Trump’s rollbacks of public health and environmental protections—like eliminating rules against methane flaring from oil and gas facilities and dismantling national monuments—and to begin laying out steps for restoring them.
Executive actions are powerful tools, but they aren’t all created equal: Some carry out limited authority granted by Congress and can’t be as easily reversed. For instance, Congress has granted the president the power to create new national monuments. While Congress retains the authority to annul an existing national monument, presidents (ahem, Trump) do not have the power to do so.
Complicated: Rules and Regulations
The majority of the Trump administration’s attacks came as formal rules written by federal agencies—such as the rollback of the Clean Water Rule by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers and the weakening of the Endangered Species Act by the U.S. Department of the Interior.
To complete the regulatory process, agencies generally must first propose a draft rule, give the public an opportunity to comment on it, and then publish a final rule that takes into account those comments and the evidence.
Some Trump-era rules languished as proposals, never crossing the finish line. For such proposals, Biden’s agencies can drop or revise them. But in order to reverse those rules that made it into the books and became official regulations, the Biden administration would have to go through required regulatory steps—proposing to rescind or change the rule, receiving public comments, and writing a new formal decision (which may then be challenged in court). All in all, while this process can be relatively quick in some cases, others will take years.
Some very important rollbacks fall under this “take years” category. Take Trump’s weakening of vehicle emission and fuel efficiency standards, which has huge consequences for the climate and communities facing harmful levels of tailpipe pollution. The Trump administration moved to undo the Obama-era rule soon after taking office in 2017, but its replacement wasn’t finalized until the spring of 2020. If the Biden administration hopes to restrengthen these standards for vehicles—perhaps making them even stronger than the originals—it could take just as long.
Such delays can be frustrating, but they are ultimately a function of the system. Strong regulations backed by evidence, full disclosure of impacts, and public input are more likely to stick. Many of Trump’s rules didn’t survive scrutiny or remain the subject of ongoing legal challenges because his administration cut corners. If the Biden administration does its homework and creates thorough, science-backed policies, its rules are more likely to endure.
One potential shortcut: The Congressional Review Act (CRA) is a little-known law that allows Congress to vote to overturn any regulations issued within the final months of a former president’s term. For instance, Trump reversed 16 of Obama’s rules in this manner and was the first president to rely on it so heavily. (Prior to Trump, the law had been used just once successfully in its 25-year history.) Some of the reasons the CRA has previously been used sparingly is because it eats up limited congressional floor time, can undermine the regulatory process in the long run, and would prohibit agencies from passing substantially similar rules in the future. In recent weeks, Democrats in Congress employed the CRA for the first time in order to block a Trump rollback of pollution standards concerning methane, a powerful greenhouse gas.
More Complicated: The Labyrinth of Litigation
The only thing more persistent than Trump’s rollbacks was the flood of lawsuits he faced in response. For instance, NRDC sued the Trump administration every 10 days on average, often joined by states and broad coalitions of other concerned advocacy organizations.
And many of those lawsuits were successful: A number of Trump-era actions have already been tossed out—like the do-nothing replacement of the Clean Power Plan (though industry continues to fight for this one) and the decision to delay publishing energy efficiency standards for household appliances, both cases in which NRDC legal action was instrumental.
But dozens more cases are still making their way through the courts. In some cases, Biden’s agencies can tell the court that they no longer want to proceed with the defense of a Trump-era rule and that it should be struck down. This has happened only a few times so far—one of them for an EPA rule that redefined what qualified as “significant” greenhouse gas emissions—and is typically reserved for cases where the agencies feel comfortable asserting that the challenged rule is clearly unlawful.
For most pending Trump-era lawsuits, Biden’s agencies will more likely ask the courts to put the cases on hold—while they work on writing their replacement regulations. Another option is that the agencies involved can ask the court to send the rule back to them so that they can work on revisions that might resolve the legal challenges.
As a recent Harvard Law report explains, “This tactic, as with seeking a suspension of litigation, will eliminate the risk of an unfavorable decision. It will prevent the court from reaching the merits and potentially upholding the Trump-era rule.”
That risk may be greater given the shift in makeup of the federal courts under Trump, with new judges skewing more conservative. In his four years, Trump appointed more than 200 federal judges, including three Supreme Court justices and 54 federal appeals court judges (who are particularly important, as they often get final say in the large number of cases that the Supreme Court does not review). Appointed for life, these jurists will have profound impacts on how environmental law is interpreted and what agency decisions remain in force.
While it may seem like rerouting a rule back to the agency would be the best bet, sometimes moving forward with litigation can be the preferred way to go. As we’ve learned, the full administrative process takes a significant amount of time to do right. If a rule is causing urgent damage—whether by polluting communities, killing imperiled wildlife, or destroying ecologically and climate-crucial habitats—the plaintiffs may want the case to push forward in order to knock down the offending rule as soon as possible.
“There are a chunk of cases right now where the Biden administration is asking the court to put the case on pause or send it back,” says Ian Fein, senior counsel at NRDC, “but NRDC is saying, ‘No, we have strong claims, this is illegal, and there are harms that are ongoing in the meantime.’ ” In these cases, the courts get to choose how to proceed.
The Long Game
The task at hand now for the Biden administration, says Andrew Wetzler, NRDC’s chief program officer, is to write iron-clad, protective laws that have staying power—while building political and grassroots momentum on the ground to ensure these policies stay in place under future administrations.
“That way, the solutions to climate change and other environmental problems will have popular support behind them,” Wetzler says, “no matter who’s president.”
Here’s what we want to see from our new president on the environmental front between now and May.
As the country focuses on fighting a pandemic and mourning its victims, the Trump administration sees a perfect time for showering the fossil fuel industry with gifts.
At polluters’ written request, the president is now trying to gut NEPA, the Magna Carta of environmental law.
Our next president could address many pressing environmental and public health issues right away—some with just a stroke of the executive pen.