Biden’s Regulatory Efforts Heat Up
By Emily Green
On Tuesday, June 13, President Joe Biden released his Spring regulatory agenda, outlining plans to address climate change, health policies, and more. The list, typically issued twice a year, offers a window into how the administration plans to use 29 cabinet-level departments, executive agencies, and federal commissions to advance the president’s priorities. The latest set of rules is primed to meet a crucial deadline to avoid being overturned by Republican lawmakers if President Joe Biden loses his reelection bid.
Congressional Regulatory Oversight
The Congressional Review Act (CRA) requires agencies to submit final rules—major rules, non-major rules, and interim final rules—to Congress and the Government Accountability Office (GAO) prior to the rules taking effect. It is also an oversight tool Congress may use to overturn final rules issued by federal agencies. The CRA can be used at all times during a Congress but is most frequently used during a change in administration and when there is a shift in majority control.
Final rules submitted to Congress prior to both the 60th day of the Senate session and the 60th House legislative day before the day of the adjournment will not be subject to additional periods for review in the following congressional session. Rules submitted on or after the 60th day before sine die adjournment in at least one chamber will be subject to the renewed periods for congressional review. Hence, The Biden Administration is closely watching the calendar, since any rule finalized later in 2024 could put the rule inside the timeframe for CRA resolutions should Republicans win the White House and maintain or grow their power in Congress.
While over 200 joint resolutions of disapproval for more than 125 rules have been introduced since the CRA’s enactment, the method has only successfully been used to overturn a handful of rules. For example, the CRA was used in the 115th Congress to repeal 16 rules promulgated by the Obama administration and was utilized again in the 117th Congress to similarly repeal three rules promulgated by the Trump administration.
What’s In The Updated Agenda?
The Spring 2023 Unified Agenda just released showed a significant number of major rulemakings are slated to be finalized in spring 2024. The dates identified in the Unified Agenda are goals rather than hard deadlines, and rulemakings frequently take longer than expected to complete. But it does highlight administration priorities for the coming year in key policy areas, some of which are outlined below.
Climate change: EPA has moved up its target date for finalizing the new power plant climate proposal, now gunning for April 2024. On methane, EPA continues to predict finishing sweeping new emissions requirements for the oil and gas sector by August. The Bureau of Land Management is targeting a September finalization date for its own separate methane rule applying to public lands. It’s the second time the agency has tried to curb methane after an Obama-era rule was struck down.
Additionally, the Council on Environmental Quality aims to issue a final update to its climate guidance regarding greenhouse gas analysis under the National Environmental Policy Act in February. A separate rule making broader changes to NEPA regulations known as the Phase 2 rule has been under review at the Office of Information and Regulatory Affairs since January; the agenda indicates it will be proposed this month. The Interior Department also plans to finish a rule on leasing federal land for conservation and climate resilience purposes by December 2023.
Water: EPA appears to be scrambling on Waters of the U.S. after the Supreme Court a few weeks ago significantly shrank the reach of federal water jurisdiction. The agency had been planning a follow-up rulemaking to address the Supreme Court’s ruling, but that has now been “withdrawn” from the Unified Agenda, and no rule has yet popped up to replace it. Additionally, EPA is still on track to propose updates to the lead and copper rule by September and to finalize it in October 2024.
Per- and Polyfluorinated Substances (PFAS): After proposing the first-ever federal drinking water standards for PFOA and PFOS, two of the “forever chemicals” contaminating the majority of Americans’ drinking water, EPA is optimistic about its timeline to finish the rule. The law gives EPA until September 2024 to issue the final rule, but the agency is now projecting getting it out the door in January instead. Additionally, EPA continues to predict it will propose a rule listing four PFAS chemicals as hazardous under the Resource Conservation and Recovery Act.
FERC Transmission Rules: The Federal Energy Regulatory Commission (FERC) has a proposal to improve regional transmission planning and cost allocation and a separate rulemaking aimed at unclogging the lengthy queue of generators trying to connect to the grid. However, both items are listed as “next action undetermined” on the agenda with a May 2024 date. As a part of this, the commission could issue a final rule on how grid operators should register wind, solar and other non-hydropower renewable resources that might otherwise be considered too small individually to have a significant impact on the grid.
Next Steps
Finalizing these federal rules by the first half of next year is paramount for the White House. Otherwise, they may be open to being killed by a GOP-led government after the 2024 election, which could prevent a future administration from enacting similar rules.
As always, Constitution Partners will continue to monitor regulatory agenda items of importance to our clients and are ready to assist during the rulemaking process.