The first part of this article on the final weeks of the Trump administration's ambitious environmental deregulatory agenda discussed environmental rules that the administration has proposed but not finalized, as well as rules that the administration has indicated that it wishes to advance but has not yet proposed. The article also considered the hurdles that rules in these two categories face.
This second part of the article covers another category: We highlight more than 25 environmental rules that have already been finalized, but for which legal challenges have not yet been exhausted. These rules — more than 15 of which were finalized since President Donald Trump declared COVID-19 a national emergency in March — are at various stages of litigation.
With respect to the most recently published final rules, litigation may be anticipated, but has not yet been filed. In other cases, oral argument has been heard and a decision is pending.
In those cases, the current administration is anxiously awaiting whether opinions will issue before a new team takes the helm at the U.S. Department of Justice. Once new leadership is installed, the DOJ will have the chance to ask the courts to hold cases in abeyance, while the new administration considers whether to reconsider the rules under review.
Other cases are awaiting completion of briefing and/or oral argument. In these cases, the current administration is hoping the rules can be defended while the DOJ and its client agencies are still under the direction of Trump appointees. With every DOJ brief filed and oral argument presented, the ability of a new administration to flip positions and change legal arguments becomes more challenging.
In any event, once the Biden administration assumes office, it will have its hands full in sorting through many dozens of final rules in various stages of litigation across the government, deciding which cases they want to hold in abeyance and which cases they prefer to see play out — with or without the administration's support in defense of the rules.
Based on experience with past administrations, reversing course on a vast sea of regulations and agency actions is easier said than done. Numerous Trump administration efforts to repeal and replace Obama-era initiatives ran into trouble in the courts, for example. Judicial setbacks for the Trump administration will serve as lessons learned for a new Biden administration seeking to roll back the rollbacks.
To the extent feasible, the next administration will likely take its time to set priorities, balancing the desire to undo certain deregulatory measures with the imperative to develop new regulatory programs to meet critical policy objectives and campaign commitments. The new administration will also likely pay careful attention to the intricacies of the Administrative Procedure Act, and the record support required for justifying changes in agency positions — including consideration of reliance interests — in order to avoid the same pitfalls that befell its predecessor.
Moreover, the new administration will have to contend with a large number of Trump-appointed judges — including three new U.S. Supreme Court Justices — who tend to be skeptical of executive branch overreach, and reluctant to extend judicial deference to agency interpretations under the Chevron doctrine.
Importantly, the Democrats' failure to win control of the Senate — depending on the outcome of the runoff elections for both Georgia Senate seats in January — has taken an important tool for regulatory change off the table: the Congressional Review Act's lookback provision.
Under the CRA, Congress has the authority to pass a joint resolution disapproving an agency rule issued toward the end of the previous administration. This joint resolution is powerful, because it makes the rule "of no force and effect" and bans the agency from issuing another rule in "substantially the same form" unless specifically authorized by statute.
The Trump administration and the 115th Congress made unprecedented use of the CRA — repealing 15 rules issued by the Obama administration.1 Notably, in April 2019, the Office of Management and Budget issued an expansive definition of the types of agency actions covered by the CRA, including interpretive rules and some guidance documents.2
If the Democrats gain control of the Senate by winning both Senate seats in Georgia, regulations published in the Federal Register beginning in June of this year, or possibly even earlier, could be subject to the CRA's lookback period. With the Senate in Republican hands, however, the Biden administration will likely not have this legislative shortcut at their disposal.
List of Key Final Rules Currently Being Challenged in Court or Potentially Subject to Judicial Review
Proposed rules are not the only ones at risk. The Trump administration is also in a race against the clock for the judicial review process to play out in challenges to final rules that have already been issued.
Proponents of these rules would prefer that this administration's appointees oversee briefing and oral argument, and that courts issue decisions before the new administration can reconsider the position of the executive branch. In particular, for cases in which the Trump administration has promulgated a rule that advances an interpretation of a statute, a judicial determination that the interpretation is correct would be more difficult for the next administration to overcome.
COVID-19 has already caused delay in some of these cases. Most courthouses have closed their doors, postponed oral arguments and extended briefing schedules. Courts have had to transition to remote forms of oral arguments and hearings.
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Footnotes
1. The Congressional Review Act Frequently Asked Questions, CRS (Jan. 14, 2020).
2. Guidance on Compliance with the Congressional Review Act, OMB (April 11, 2019).
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