Biden ‘freeze’ of Trump rules could halt environmental rollbacks

The Biden White House on Wednesday issued a memo that could halt Trump administration rules that had not yet gone into effect, stopping several environmental rollbacks in their tracks. 

Among the environmental rules that may be prevented from immediately going into effect are rules that weaken protections for migratory birds, prevent regulation of greenhouse gas emissions for any sector beyond the power industry, and one that slows replacement of lead-tainted water lines.

The memo from chief of staff Ron Klain puts a “freeze” on all pending regulations that had not yet gone into effect, giving his own administration an additional 60 days to review how to proceed and whether to dismantle them. Any rules that have not been finalized will be withdrawn.

During its last few weeks, the Trump administration sped through a number of environmental rules, many of which rolled back protections.

Some of the most controversial were put into place immediately and will not be subject to the order, but several still in the hopper will likely be nixed by the Biden administration. 

One is a rule changing the implementation of the Migratory Bird Treaty Act, a 100-year-old law that protects bird. The change would mean companies would no longer be penalized for incidentally killing migratory birds. 

The administration said that this rule would prevent companies from facing charges for things that aren’t their fault, but admitted that it may prevent some companies from taking on best practices to prevent bird deaths. 

Another rule would have preempted regulations on emissions on the oil and gas sector and other polluting industries by stating that the Environmental Protection Agency (EPA) could only impose regulations on sectors whose emissions make up at least 3 percent of the country’s total emissions. 

The EPA’s updates to its lead and copper rule would also be subject to the order. The rule would require cities to notify people who were potentially exposed to lead within 24 hours, but would reduce the speed at which utilities need to replace lead service lines, a feature critics say will likely leave lead pipes in the ground for up to 30 years.   

Additional rules that would also be halted include one that would prevent banks from excluding the fossil fuel industry from financing and another that reduces the royalties oil and gas companies pay to drill on public lands and in public waters. 

Many late-in-the-game Trump rules will not be affected by Biden’s order, however, because the Trump administration allowed some to take effect immediately. The EPA under Trump cited the “good cause” provision of regulatory law to speed approval of rules they deemed necessary.

That includes a measure that changes how future administrations evaluate their air regulations, making it tougher to weigh the benefits of fighting climate change — something critics said would undermine those trying to set stricter regulations. 

It also includes one of EPA’s most controversial last-minute rules, a measure that limits EPA’s use of studies that don’t make their underlying data public.

In addition to asserting the rule needed to take effect immediately, EPA Administrator Andrew Wheeler argued the rule wouldn’t be subject to the Congressional Review Act because it was an internal housekeeping rule.

Critics say the rule will have ramifications far beyond the agency.

“On the one hand it purports to have a really strong impact on what EPA does, and on the other hand they’re saying it’s just a procedural rule for housekeeping, and it’s very hard for those two things to coexist,” said Sean Hecht, co-director of the University of California Los Angeles Emmett Institute on Climate Change and the Environment.

“It seems like they’re kind of trying to have it both ways and I don’t think that courts will be responsive to that.”