|Trump administration agencies are attempting last-minute regulatory rollbacks, such as to allow drilling near historic areas like Chaco Canyon in northwestern New Mexico, pictured above in 2017. Photo: Mark Watson, Flickr Creative Commons. Click to enlarge.
TipSheet: Midnight Deregulation Zombie Horror Show Begins
EDITOR'S NOTE: This story is one in a series of special reports from SEJournal that looks ahead to key issues in the coming year. Visit the full “2021 Journalists’ Guide to Energy & Environment” special report for more.
By Joseph A. Davis
The witching hour is here. “Midnight regulations” are popping up like mutant zombies in the second reel. Environmental journalists should be alert and wary. News is afoot.
Usually, when a conservative GOP regime comes in, there is pious, anti-regulatory talk of all the last-minute regulatory attempts by the lame-duck outgoing Democratic administration. In a tone of sanctimonious outrage. And typically, they drive stakes through the hearts of those regulations first thing.
By most accounts, Trump administration executive agencies are racing during these last few days to push across the finish line every regulation (or deregulation) they can. Many may not survive the start of the Biden presidency.
In fact, some news media are already chronicling this new horse-race. Matthew Brown and Ellen Knickmeyer of the Associated Press catalogued a basketful of rushed rollbacks in a Nov. 18 piece.
The rollbacks included weakening of century-old
protections under the Migratory Bird Treaty Act,
drilling in the Arctic, drilling near Chaco Canyon
and keeping weak standards for particulates.
The rollbacks included weakening of century-old protections under the Migratory Bird Treaty Act, drilling in the Arctic, drilling near Chaco Canyon and keeping weak standards for particulates. Particulates (soot) can team up with COVID-19 to make lung disease worse, by the way, particularly for people of color living in polluted areas.
In a piece for E&E News, Kelsey Brugger lists a bunch as well, adding the U.S. Environmental Protection Agency’s “secret science” rule and cost-benefit forecasting for clean air rules. She noted that EPA alone had some 24 regulatory proposals in the pipeline for review by the Office of Management and Budget.
Crack New York Times gumshoe Eric Lipton did a similar inventory, going beyond the environment and energy beat. He points to an under-the-wire rule allowing freight trains to carry liquified natural gas, or LNG, an extremely hazardous cargo that rarely goes by rail today and that would pass through densely populated areas. He also points to an EPA decision not to tighten air standards for ozone, another pollutant that worsens people’s vulnerability to COVID-19.
So there are a lot, potentially. Tracking them, for the next few months, will be a cottage industry. There is even a “Midnight Watch Project” now at the NYU School of Law’s State Energy & Environmental Impact Center. It’s not a tracker, exactly, but it gives good basic info about many of the midnight deregulations.
Regulatory gamesmanship only just beginning
Trump’s troops have had four years to poleaxe all these regulations, and environmental journalists have had four years to write about the poleaxing. Why start now? For some, it’s just the sprint to the tape. But now there is an extra layer of gamesmanship.
You see, many — but not all — of these midnight deregulations can be blocked or reversed by the incoming Biden administration. Let’s talk about that.
First off, last-minute regs can in some cases be undone by a thing called the Congressional Review Act (which TipSheet wrote about recently). But it only works if the Democrats hold all three bodies: the White House, the House and the Senate. Pending the outcome of the Georgia Senate runoffs, that is a long shot.
If Dems do get 50 Senate seats, they could veto any regulatory action after about June 2020. One that could get caught in this deadline is the Trump rule weakening the National Environmental Policy Act.
There just may not be enough time for the
outgoing administration. The rulebook for
federal rulemaking has procedural requirements
that could hang up any lunge for the tape.
But second, there just may not be enough time for the outgoing administration. The rulebook for federal rulemaking (the Administrative Procedure Act) has procedural requirements for things like notice in the Federal Register and time for public comment. These could hang up any lunge for the tape. Watch for rules with short (under 60 days) comment periods.
Third, if we are to believe Trump, the president can do anything he wants (he can’t). When the Trump administration came in, it preemptively froze all new regulations, in order to prevent the midnight hanky-panky of Obama regulators from being implemented. In some cases this was legal and in a few more, it worked. Any rule not “final” as of noon on Jan. 20, 2021, is vulnerable for sure. And probably more.
Fourth, no matter what the circumstances, most controversial regulatory proposals are headed to court as quickly as their opponents can challenge them. Certainly, environmentalists will challenge midnight regs they don’t like in court, as soon as they go final.
Even now, many of Trump’s pet deregulations are in court, being defended by (Trump) EPA and Justice Department lawyers. An incoming Biden administration could in many situations drop or withdraw from cases defending these rules.
Finally, there are many other regulatory procedures an incoming Biden administration could use to cancel or reverse any mischievous midnight regs. One is a new rulemaking (which takes a lot of time, but might enable a freeze while it is being decided). Theoretically, Congress could intervene by one of many legislative techniques, although Congress is usually deadlocked. Executive agencies have been known to use non-enforcement as a technique.
The pros who do this journalism year-round, and not just when it’s trendy, watch a thing called the Regulatory Agenda (look here and here). Some look at the Federal Register every day, just to find out what they will be writing about. We didn’t say it wasn’t sleepy-making; we said it was important.
Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, as well as compiling SEJ's weekday news headlines service EJToday. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column and WatchDog Alert.
* From the weekly news magazine SEJournal Online, Vol. 5, No. 43. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.