The Trump administration is racing against the clock to lock in pieces of the president’s first-term deregulation agenda before an obscure law makes it easier for congressional foes to reverse his policies.
Regulators are rushing to finish work as soon as next week on some top Trump initiatives, including relaxing fuel economy standards for vehicles and eliminating the legal basis for restricting mercury pollution from coal-fired power plants. The haste is necessary to prevent the measures from being killed by Congress next year if President Donald Trump loses re-election and Democrats retake the Senate.
“Time matters,” said Cary Coglianese, a regulatory expert at the University of Pennsylvania Law School. “Anything that delays regulatory changes from going forward in the last year of an administration does raise the risk of a reversal, should control of the White House change.”
The effort has been complicated by the coronavirus, which has strained government resources, distracted policy makers and created a public-relations risk to any measures not connected to the global pandemic.
The White House Office of Management and Budget warned agency heads last week that the coronavirus is now the top priority, with everything but “mission-critical” work taking a back seat. Nevertheless, agency officials now are preparing to advance the final fuel economy and mercury measure as soon as next week, according to two people familiar with the matter who asked for anonymity to discuss administration strategy.
Trump officials are well acquainted with the threat posed by the 24-year-old Congressional Review Act, which gives lawmakers special power to overturn recent regulations on a simple majority vote and without being held hostage by filibusters. Republicans in Congress wielded it to kill a slew of Obama-era rules in 2017.
The repeal power applies to regulations imposed by federal agencies within the past 60 legislative days -- a cutoff now expected around mid-May. But that deadline is a moving target and could shift sooner or later if the coronavirus causes changes to the congressional schedule.
The Trump administration advanced some of its highest-priority regulations earlier to avoid the CRA cutoff, even carving up its automobile plan so that last year it finalized the most important piece of it: a strike against California’s authority to write its own rules on tailpipe greenhouse gas emissions.
Now, the administration is preparing to unveil the second piece of its auto package: a rule resetting mandates on fuel economy and emissions. The Environmental Protection Agency is also moving to issue its final rule asserting mercury pollution control requirements are too costly to justify at coal-fired power plants.
Still other efforts, such as authorizing a sale of drilling rights in the Arctic National Wildlife Refuge, were within weeks of being finished before the coronavirus was deemed a pandemic.
“They were really working to get everything done, and then this thing escalated to the level it has and understandably put everything on hold,” said Tom Pyle, president of the American Energy Alliance that has championed the auto plan.
While the White House Office of Information and Regulatory Affairs is still reviewing draft rules tied to Trump’s pre-pandemic priorities, those efforts are up against a deluge of coronavirus-spurred policy making.
Trump agencies now are triaging to get the highest priority items finished. At the EPA, for example, reviews of ambient air quality standards for ozone and particulate matter are in limbo while the agency wraps up work on the auto and mercury measures.
“We are moving forward on any number of regulatory issues,” EPA Administrator Andrew Wheeler told reporters Thursday. While the new coronavirus has caused employees to work from home, “all of our employees are still working.”
Christopher Guith, a senior vice president at the Chamber of Commerce’s Global Energy Institute, said “The administration is appropriately focused on responding to the global coronavirus pandemic and stabilizing the economy.”
“The response is all hands on deck, and while regulatory reform continues to be a priority of the Chamber and the business community, we understand that resources may have to be diverted,” he said.
When lawmakers are sworn in next January, they will get an extra 75 legislative days to target any rules that were still within the CRA window when Congress adjourns this year.
Even without the CRA threat, any so-called midnight rulemaking by the Trump administration can be easily wiped away. Rules finalized within the final 30 days of an administration generally could be pulled back if the White House changes hands. And ongoing lawsuits against rules could make it easier for a successor to overturn them.
Imposing controversial policies now, during a global health crisis, could invite blowback as nearly 75,000 have tested positive in the U.S. and more than 1,000 have died from it.
The public might wonder “why are you even dealing with this right now when you’re supposed to deal with Covid?” said Dan Bosch, director of regulatory policy at the American Action Forum. Bosch said that’s particularly true for three proposed immigration rules that would limit the ability of asylum seekers to obtain work permits and increase the fees on many forms and applications.
It would be a “colossal mistake” to advance measures undermining clean air requirements for cars and power plants amid a spreading respiratory virus, said James Goodwin, a senior policy analyst for Center for Progressive Reform. Those regulations already were a bad idea, he said, and now the coronavirus makes them even worse.
“Patients who live in areas with better air quality have higher survival rates,” Goodwin said. “The point is to advance policies right now that improve our ability to absorb this epidemic.”
(Adds EPA comment in 14th paragraph. An earlier version corrected a name in the 18th paragraph.)
For more articles like this, please visit us at bloomberg.com
Subscribe now to stay ahead with the most trusted business news source.
©2020 Bloomberg L.P.