Since President Joe Biden took office more than two years ago, the Environmental Protection Agency has been something of a sleeping giant.
Once central to President Barack Obama’s climate policy, the EPA seemed to take a backseat under Biden. As the Department of Treasury wrote rules for a dizzying number of new tax credits, and the Department of Energy became a de facto industrial-planning organization, the EPA seemed to wallow.
Then a few weeks ago, the agency came alive.
Last week, it proposed requiring that most new cars sold in the United States — and one quarter of all heavy-duty trucks — be powered solely by electricity. A week before, it tightened limits on the amount of brain-damaging mercury that coal-burning power plants can release. In March, it instructed nearly two dozen states to clean up pollution from their factories and power plants, and it slashed the amount of toxic air pollution that buses, vans, and heavy-duty trucks can legally produce.
This sudden burst of activity is in some ways just the appetizer. Within the next few weeks, the EPA is expected to propose restricting climate-warming pollution from new and existing power plants. This set of draft rules will aim to rapidly eliminate greenhouse-gas pollution from the power sector, one of the most carbon-intensive parts of the economy, in order to meet Biden’s goal of producing 100% zero-carbon electricity by 2035.
It will also face an immediate challenge in the Supreme Court, which has blocked a similar effort in the past even as it has preserved the EPA’s broad power to issue rules about the power sector.
This sudden flurry of productivity may seem to have come out of nowhere.
So why is the EPA publishing so many of these rules now?
The same reason that any of us suddenly become productive: It’s under deadline pressure. For the EPA, and for every other executive agency, the effective beginning of the end of Biden’s first term is as little as a few weeks away. Here’s why.
Under a law called the Congressional Review Act, Congress can overturn new federal rules by a simple majority vote and with the president’s signature. Most of the time, that power doesn’t matter, because presidents rarely want to repeal rules that their own administration has issued. (Last month, Biden vetoed a CRA resolution for this reason.)
But it becomes important when a new White House and Congress take over from a president of the opposite party. In 2017, a newly elected President Donald Trump and a Republican Congress repealed 16 Obama-era rules. In 2021, the new Democratic trifecta overturned three of Trump’s rules.
Biden would like to avoid the same fate befalling his own administration’s climate rules, so he’s moving fast. The key is that Congress can only activate the CRA for new rules — which, under the law, means rules that were finalized during the past 60 “legislative days,” or days when the House or Senate was in session. Because Congress isn’t in session every day, that’s a much longer period of time than it may seem — it can stretch four or five months into the past. When Biden took office in early January 2021, for instance, Congress could use the CRA on any rules that the Trump administration finalized after August 21, 2020.
“It is difficult to know with any specificity what the ‘lookback window’ will look like in 2024,” because it depends on what “the actual session of Congress looks like,” Dan Goldbeck, the director of regulatory policy at the American Action Forum, a center-right think tank, told me. In recent years, the deadline has tended to fall sometime in the late summer, but there’s no guarantee this pattern will hold next year, he said.
Let’s figure it does, though, and that the administration must finalize rules before about August 1, 2024, in order to protect them from the CRA.
We can backfill the calendar from there. As of today, the EPA has only started to circulate drafts of its most important rules, such as the clean-cars mandate. It has yet to publish these drafts in the Federal Register, the government’s official journal of rules and regulations. When they are published, the agency will open a 60-day comment period when the public can respond to any facet of the rules; it will probably extend this to 90 days as a show of good faith.
So if the EPA publishes its draft rule in the Federal Register soon — on May 1, say — then the public comment period will end three months later, on August 1. Then the agency must go over its draft again, double check its math, and respond to every public comment that it has received. This process of finalizing the rule can take about a year. Assuming it does, then suddenly it’s August 1, 2024 — and we’re at the (approximate) deadline.
In other words, the EPA must publish as many rules as possible now in order to protect them from quick repeal if, say, Ron DeSantis is inaugurated in 2025. This is part of why the EPA is moving with such haste now — and why the Biden administration’s climate policy has entered a new and more aggressive phase.
