On 7 November, Joe Biden became the projected president-elect of the United States. With an aggressive climate change plan that includes rejoining the Paris Agreement on the first day of his term, President-Elect Biden and his administration likely will make significant changes to environmental, health, and safety rules and policies that will roll back Trump administration environmental actions and increase civil and criminal enforcement of environmental laws.
New Regulatory Rollbacks and Expansions
The Trump administration took deregulatory actions that weakened or repealed more than 100 environmental policies and regulations. For example, President Obama's Clean Power Plan, which set targets for greenhouse gas emissions for existing power plants, was repealed and replaced with the Affordable Clean Energy rule, which removed emission targets and directed states to determine the best course of action for regulating power plant emissions. The Trump administration issued the Safer Affordable Fuel-Efficient Vehicles Rule, which authorized the Department of Transportation to establish fuel economy standards and preempted similar state regulations, including California's regulations regarding greenhouse gas emissions for new passenger cars and light trucks. The Trump administration's Navigable Waters Protection Rule significantly narrowed the Waters of the United States Rule under the Clean Water Act. Trump's Environmental Protection Agency (EPA) repealed Obama-era methane and volatile organic compound emissions standards for new and existing oil and gas operations and removed the most stringent requirements of newly promulgated revisions to the Risk Management Program rule. The Occupational Safety and Health Administration (OSHA), meanwhile, largely stalled new rulemakings that had been initiated under the Obama administration, including the Process Safety Management (PSM) standard, and has so far declined to initiate a rulemaking in response to COVID-19 under the current administration.
The Biden administration likely will begin working immediately to roll back these Trump-era policies and regulations. Under the Biden Plan for a Clean Energy Revolution and Environmental Justice, Biden commits to utilizing executive branch action and executive orders to implement a number of aggressive environmental rules that directly contradict the Trump administration actions, including developing rigorous fuel economy standards, reducing greenhouse gas emissions from transportation, and establishing methane emission limits for new and existing oil and gas operations.
It is important to note that there are several high-profile challenges to Trump administration environmental actions that are still pending in federal courts. The Biden administration may seek to stay or remand the pending federal litigation in order to provide the relevant agencies with time to review the rule at issue and develop new positions. The Biden administration could also potentially rescind the rule at issue through the Administrative Procedure Act or replace the rule. However, any course of action likely will involve a lengthy administrative process that could lead to additional legal challenges.
In terms of workplace safety, during his campaign, Biden made statements to labor groups that he would direct OSHA to immediately release and enforce an emergency temporary standard regarding COVID-19. Biden indicated this rule would be aimed at reducing the spread of COVID-19 and likely set the stage for a subsequent permanent standard on infectious disease. Separately, it is possible OSHA will resume work on developing and promulgating new worker safety rules such as updates to the PSM standard, as Democratic-leaning states have done in recent years.
Whether the Biden administration is likely to pass significant environmental and worker safety legislation depends upon the composition of the Senate, which will remain uncertain until the runoff elections for two Georgia Senate seats are held on 5 January. If the Democratic candidates in both elections prevail, then the Democrats will gain control of the Senate. If a Republican candidate prevails in either election, then the Senate majority will remain Republican. Without a Democratic Senate majority, passage of such environmental legislation will face greater challenges.