Publication / The New Republic
June 29, 2020
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Even if Democrats win back the White House and the Senate, it will be a long struggle to restore the regulations the Republican-controlled EPA has erased.

The Trump administration’s response to a pandemic that has killed more than 120,000 Americans and forced much of the country into a devastating economic slowdown has been a massive failure, leading to new levels of anger and disappointment at the president. But none of that has stopped Donald Trump and his aides from rolling back as many environmental protections as they possibly can.

Since March, the Environmental Protection Agency has weakened mercury air pollution standards, permanently lowered regulations for vehicle tailpipe emissions, and finalized a reinterpretation of the Clean Water Act that opens the door to expedited pipeline development.

At the White House, Trump has been just as busy. In June he signed an executive order that allows companies to bypass key environmental reviews on infrastructure projects like mines and issued a proclamation to allow commercial fishing in a protected monument off Maine’s coast that was created specifically to limit such activity. The administration has called the moves necessary environmental adjustments during the pandemic and important measures to prop up the U.S. economy, including the suddenly struggling oil and gas industry. But it’s obvious that the White House has no intention of slowing down rollbacks—and in some cases finalizing hard-to-reverse rules—until the last moments of the administration.

While environmental activist groups are obviously hoping that Joe Biden—who holds a large lead in the polls—will occupy the White House come January, reversing some of Trump’s anti-science, anti-environment policies will take more than a Democratic president and a new set of federal officials. Trump has done damage to regulations that will take potentially years to unwind. “Just having Democratic control doesn’t guarantee that everything will happen,” said Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists. “You have to reestablish the ability of the body politic to hold elected officials accountable and to do the job they were sent to do. We should never be in a place where agencies can ignore enforcing a law because they disagree with it.”

In the past few months, the Trump administration’s deregulatory pace has accelerated even beyond the scorched-earth style of the last three and a half years. As of May 20, it has revoked, replaced, or weakened 66 environmental rules, according to a count by The New York Times. Since then, at least a handful of other rules have been finalized and submitted for final review, including an EPA rule that limits state and tribal communities’ ability to challenge energy projects such as pipelines.

Bolstered by the pandemic’s economic emergency, the EPA in March announced the agency would no longer be holding industry polluters to task for breaking pollution standards. The administration has also in some instances denied requests to extend the public comment period on pending rules, which environmentalists say has led to a decrease in public input. Critics argue it’s a purposeful tactic to speed up the process.

“They’re using the epidemic to say EPA doesn’t have the resources in these troubled times for continuous enforcement,” said Richard Frank, a professor of environmental practice at the University of California, Davis School of Law. “But the validity or truth of that is belied by the fact that while it’s announced that they are shutting down most of their environment enforcement efforts, it’s still moving forward on all of these eleventh-hour efforts to repeal or implement planned environmental rollbacks on natural resources and pollution controls.”

Some of this damage to environmental regulations will be easier to reverse under new leadership than others. Executive orders enacted by Trump during his term would be the easiest to revert, as they can be deleted by a stroke of the next president’s pen. (Wiping out the predecessor’s orders is common whenever the White House changes parties.) Any regulations that are still in draft stage or need to go through a public comment period would likewise be easy to halt under a new administration, which could simply stop the process and uphold the current environmental regulations they were set to replace.

For finalized rules, like the repeal and replacement of the Obama-era Clean Power Plan, the options become murkier. The Congressional Review Act, a tool used broadly by Trump in the early days of his administration, allows Congress to overturn a regulation or federal rule within 60 days of its finalization. With that timeline, any rule completed after the end of May or early June could be axed if Democrats take control of the Senate and hold onto the House. Rules finalized prior to that date, however, would have to be repealed or replaced under a much longer regulatory process that involves months of legal analysis, a public comment period, and then likely a lawsuit from the opposing party or corporations. This mirrors the process gone through by the Trump administration, which has seen its policies repeatedly challenged in court by blue states and environmentalists.

“It’s going to be the same difficulty that the Trump administration has in promulgating awful rules. We’ll have the same difficulties trying to overturn it. If you look at the track record, Trump is losing close to 75 percent of these cases in court,” said Kyla Bennett, a former EPA staffer turned whistleblower who now works as the director of science policy at Public Employees for Environmental Responsibility. “That’s good news. But the bad news is we are going to be suffering from the same slow-as-molasses justice system to overturn that thing.”

Some of the Trump administration’s defeats in court can be partly chalked up to the sloppy way it has tried to strike down regulations. A number of final rules, like this year’s rule on car emissions, have also faced criticism for math that didn’t add up and basic spelling errors.

But any legal win and reversal by environmentalists or blue states won’t rectify damage that’s been done in the interim, argues Bennett. She points to recent changes made to a provision of the Clean Water Act known as the Waters of the United States rule, or WOTUS, which shrinks the number of small waterways and wetlands eligible for federal protection. The changes are being challenged in court by environmental groups, including PEER, but a federal judge refused to stay its implementation until the suit concludes. The rule went into effect last week.

“The two questions are, ‘What can it take to reverse the old rules?’ and ‘Can we come back from the damage that was done on the ground?’ Those are two separate questions,” said Bennett, citing WOTUS. “The first answer is: It’s going to take years. And we will have some permanent losses. I think, personally, there are some things we’ll never come back from.”

Other changes implemented under Trump’s leadership will be even harder to repair, including the nearly four-year loss of climate leadership in the international sphere after Trump’s decision to withdraw from the Paris climate accord, and changes made to the internal structure of agencies like the EPA. Under Trump, science agencies have ended key advisory committees, placed limitations on outside scientific feedback, shuttered entire offices, moved positions outside D.C., and implemented hundreds of buyouts.

If Biden were to win, the agencies will have to reckon with not only how to rebuild but how to make up for lost time.

“There has been a real brain drain and, unfortunately, EPA was an aging agency anyway. A lot of people have taken early retirement or quit in disgust,” said Bennett. “To get those numbers back up and to hire people who can actually do the work, there is going to be a lag time of training and expertise. And it’s going to result in impacts on the ground, which will be incalculable.”