In the News

EPA’s Science Advisory Board is moving closer to supporting the agency’s revised guidelines on counting the costs and benefits of rules with a draft review of the plan that includes caveats on the “discount” rate and other issues. Jason Schwartz, legal director of the Institute for Policy Integrity at the New York University School of Law, said the 7 percent discount rate is unwarranted, and the SAB panel should reject it.

Biden has promised to reenter the Paris Agreement on his first day in office, reupping the United States' global commitment to reduce greenhouse gas emissions. Rejoining the Paris Agreement won't automatically lead to greenhouse gas reductions, said Richard Revesz, director of NYU's Institute for Policy Integrity. That work will still need to be done through policy. "But it will set a mood and tone and may immediately lead other countries to take climate change issues more seriously," he said.

To meet Biden's goal of carbon-free electricity by 2035, whatever plan his team develops will have to go well beyond the Obama Clean Power Plan, and the Biden administration can be expected to begin looking at regulating greenhouse gas emissions from industrial facilities beyond power plants, analysts say. "Refineries, cement plants, other facilities—their greenhouse gas emissions are not being regulated," said Richard Revesz, director of the Institute for Policy Integrity at New York University Law School. "In order to meet his ambitious goals, he'll have to look at the potential for reductions economy-wide. And I assume that other significant categories of polluters will come under the EPA's regulatory reach. Strengthening, extending and regulating new areas will have to be undertaken." 

Biden has promised to take bold steps to undo the Trump administration's backtracking on climate and energy policy, and experts say his first moves will likely look a lot like Trump's when he took office in 2016. "There is a playbook, and it's the Trump administration playbook," said Richard Revesz, director of New York University's Institute for Policy Integrity.

Institutional investors and policy experts agree Biden will start overturning as many of the 70 or so Trump regulatory orders against former President Obama’s climate regulations as possible. Then, many expect him to expand regulations through executive order. “My guess is that the Biden Administration will move into regulating other sources of energy; cement plants, refineries, and other classes of industrial facilities,” said Richard Revesz, a professor at the NYU School of Law. “The regulatory work will be done. You don’t need Congress for that.”

Since many of Trump’s regulatory actions are being challenged in court the Biden team could settle the arguments. Although the Trump administration was aggressive in its deregulation, it has not had as much success in court. “The overall success rate right now is 15.6%” for cases on deregulation or policy making, which “stands in stark contrast to prior administrations,” Bethany Davis Noll, litigation director for the Institute for Policy Integrity at the New York University School of Law.

Biden’s regulatory agenda is widely expected to be more ambitious than his Capitol Hill plans, given the decent chances that Republicans will retain control of the Senate and would reject major climate action. “It would have to be an across-the-government effort so very ambitious goals can be realized,” says Richard Revesz, a law professor at New York University. “I expect to see all levers of the federal government mobilized in appropriate ways to at first repeal very pernicious policies of the Trump administration and then set forth an attractive affirmative agenda.”

Trump’s agencies are now in court defending several major rollbacks, including weakening the Migratory Bird Treaty Act, the Endangered Species Act, the Clean Water Act, and the National Environmental Policy Act. The Biden administration could ask the courts to put those and other cases on hold while it rewrites regulations, says Bethany Davis Noll, litigation director at New York University’s Institute for Policy Integrity. “The big picture is that a lot of work on the environment is going to continue to happen at the agency level,” she says. “Their biggest priority would be rewriting these rules.”

Joe Biden could erase much of President Donald Trump’s four-year legacy of energy and climate deregulation with the stroke of his pen, according to regulatory experts, but replacing it with something new and durable may prove trickier. Further, many of Trump’s domestic energy deregulatory policies never took full effect due to court challenges. The Trump administration has lost 84% of its energy- and environment-related lawsuits, according to New York University Law School’s Institute for Policy Integrity.

The Trump administration has won only 36% of court challenges to agency decisions before GOP-appointed judges, according to a study by Bethany Davis Noll, a professor at the New York University School of Law. Presidents Ronald Reagan, Bill Clinton, George H.W. Bush and George W. Bush fared better before politically aligned judges in such cases, winning 68% to 84% of the time. Thomson Reuters Legal summarized the study, while Noll and Christine Pries summarized the findings in an article for the Hill. The study counts an appellate panel as Republican if a majority of the judges are appointed by GOP presidents.