As he tries to secure his legacy, President Joe Biden has unleashed a flurry of election year rules on the environment and other topics, including a landmark regulation that would force coal-fired power plants to capture smokestack emissions or shut down.
The limits on greenhouse gas emissions from fossil-fueled electric stations are the Democratic president's most ambitious effort yet to roll back planet-warming pollution from the power sector, the nation’s second-largest contributor to climate change.
The power plant rule is among more than 60 regulations Biden and his administration finalized last month to meet his policy goals, including a promise to cut carbon emissions that are driving climate change roughly in half by 2030. The regulations, led by the Environmental Protection Agency but involving a host of other federal agencies, are being issued in quick succession as the Biden administration rushes to meet a looming but uncertain deadline to ensure they are not overturned by a new Congress — or a new president.
"The Biden administration is in green blitz mode,″ said Lena Moffitt, executive director of the activist group Evergreen Action.
IT’S NOT JUST THE ENVIRONMENT
The barrage of rules covers more than the environment.
With the clock ticking toward Election Day, Biden’s administration has issued or proposed rules on a wide range of issues, from student loan forgiveness and affordable housing to overtime pay, health and compensation for airline passengers who are unreasonably delayed, as he tries to woo voters in his reelection bid against presumptive Republican nominee Donald Trump.
In all, federal agencies broke records by publishing 66 significant final rules in April, higher than any month in Biden's presidency, according to George Washington University's Regulatory Studies Center. More than half the rules — 34 — were considered likely to have an economic impact of at least $200 million, the center said.
That tally is by far the highest issued by a recent president in a single month, the center said. The next closest was 20 such rules issued by Trump in his final month in office.
Biden is not shying away from promoting the rules. For example, he went to Madison, Wisconsin, to promote his actions on student loan relief after the Supreme Court rejected his initial plan. More often, Cabinet officials are being dispatched around the country, often to the swing states, to promote the administration's actions.
THE PROBLEM WITH RULES
Policies created by rulemaking are easier to reverse than laws when a new administration takes office, especially with a sharply divided Congress.
“There’s no time to start like today,” Biden said on his first day in office as he moved to dismantle the Trump legacy.
Over the course of his presidency, Biden has reinstated protections for threatened species that were rolled back by Trump. He also has boosted fuel efficiency standards, reversing the former president.
The Education Department's gainful employment rule targets college programs that leave graduates with high debt compared to their expected earnings. And the Department of Housing and Urban Development moved to restore a rule that was designed to eliminate racial disparities in suburbs and thrown out by Trump.
It's widely expected that Trump would move to reverse Biden regulations if he were to win in November.
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The Congressional Review Act allows lawmakers to void new rules after they’re finalized by the executive branch. Congressional Republicans used the once-obscure law more than a dozen times in 2017 to undo actions by former President Barack Obama. Democrats returned the favor four years later, rescinding three Trump administration rules.
The law requires votes within 60 legislative days of a rule’s publication in the Federal Register, a shifting deadline that depends on how long Congress is in session. Administration officials say they believe actions taken so far this year will be shielded from the review act in the next Congress, although Republicans oppose nearly all of them and have filed challenges that could lead to a series of votes in the House and Senate over the next few months.
Biden is likely to veto any repeal effort that reaches his desk before his term expires.
“The rules are safe in this Congress,″ given Democratic control of the Senate and White House, said Michael Gerrard, who teaches environmental law at Columbia Law School. If Republicans take over Congress and the White House next year, ’’all bets are off," Gerrard said.
RULE-MAKING TO ESTABLISH A LEGACY
Besides the power plant rule, the EPA also issued separate rules targeting tailpipe emissions from cars and trucks and methane emissions from oil and gas drilling. The Interior Department, meanwhile, restricted new oil and gas leases on 13 million acres of a federal petroleum reserve in Alaska and required oil and gas companies to pay more to drill on federal lands and meet stronger requirements to clean up old or abandoned wells.
Industry groups and Republicans slammed Biden’s actions as overreach.
"This barrage of new EPA rules ignores our nation’s ongoing electric reliability challenges and is the wrong approach at a critical time for our nation’s energy future,″ said Jim Matheson, CEO of the National Rural Electric Cooperative Association.
In addition to climate, the EPA also finalized a long-delayed ban on asbestos, a carcinogen that kills tens of thousands of Americans every year, and set strict limits on certain so-called “forever chemicals″ in drinking water. The EPA also required more than 200 chemical plants nationwide to reduce toxic emissions that are likely to cause cancer, mostly in poor and minority communities already overburdened by industrial pollution.
While recently delivered, many of Biden’s actions have been planned since he took office and reinstated or strengthened more than 100 environmental regulations that Trump weakened or eliminated.
The rules come two years after Democrats approved a sweeping law aimed at boosting clean energy that is widely hailed as the most significant climate legislation ever enacted.
Taken together, Democrats say, the climate law and Biden's executive actions could solidify his standing with climate-oriented voters — including young people who helped put Biden in office four years ago — and help him fend off Trump in a likely rematch in November.
“Every community in this country deserves to breathe clean air and drink clean water,'' said EPA Administrator Michael Regan. “We promised to listen to folks that are suffering from pollution and act to protect them.''
‘CHALLENGING TIMES’
Along with votes in Congress, the rules likely face legal challenges from industry and Republican-led states, including several lawsuits that have been filed already.
"Part of our strategy is to be sure that we understand the current court culture that we’re in, and make sure that every action, every rule, every policy is more durable, as legally sound as possible,” Regan told a conference of environmental journalists last month.
Still, looming over all the executive branch actions is the Supreme Court, where a 6-3 conservative majority has increasingly reined in the powers of federal agencies, including the EPA. A landmark 2022 ruling limited EPA's authority to regulate carbon dioxide emissions from power plants that contribute to global warming, and a separate ruling weakened regulations protecting millions of acres of wetlands.
A case pending before the court could put EPA's air pollution-fighting “good neighbor” plan on hold while legal cases continue.
“We are living in challenging times in so many ways, but we at EPA are staying focused on the mission,’′ Regan said at the April conference. “And then we have to really just defend that case in court.''
Rules issued by other agencies also face legal challenges.
Republican-led states are challenging the administration's new Title IX rules that provide expanded protections for LGBTQ+ students and new safeguards for victims of sexual assault. They're also suing to overturn a rule requiring background checks on buyers at gun shows and places outside stores.
Gerrard, the Columbia law professor, said the threat of executive-branch actions being overturned by Congress or the courts "makes it hard for either side to build up any momentum.'' That uncertainty also makes it harder for the industry to comply, since they are not sure how long the rules will be in effect.
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STAYING POWER ON CLIMATE?
Gerrard and other experts said the climate law and the bipartisan infrastructure law passed in 2021 are more durable and will be harder for a future president to unwind. The two laws, combined with executive branch actions, will put the country on a path to meet Biden's goal of net-zero carbon emissions by 2050, environmentalists say.
The climate law, which includes nearly $400 billion in spending to boost clean energy, will have ripple effects on the economy for years to come, said Christy Goldfuss, executive director of the Natural Resource Defense Council and a former Obama administration official.
She pushed back on complaints by industry and Republicans that the power plant rule is a continuation of an Obama-era “war on coal.″
“It’s an attack on pollution,″ she said, adding that fossil fuels such as coal and oil are subject to the Clean Air Act “and need to be cleaned up.″
West Virginia Attorney General Patrick Morrisey, who led the challenge in the 2022 Supreme Court case, said EPA was adhering to what he called Biden's "Green New Deal'' agenda.
“Unelected bureaucrats continue their pursuit to legislate rather than rely on elected members of Congress for guidance,” said Morrisey, who is the GOP nominee for governor in the state.
