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The deregulatory era of the past four years, in some cases, exposed how vulnerabilities in the way those rules were crafted or finalized can be used to weaken or rewrite them. About 85 percent of the Trump administration’s deregulatory actions over the past four years were struck down by the courts. Richard Revesz, the Lawrence King Professor of Law and Dean Emeritus at New York University School of Law, where he directs the Institute for Policy Integrity, points out that regulatory action tends to be more durable if it’s undertaken in the first term of a two-term administration—all the more reason why Biden must take swift action in his first year in office to put the nation on an even more aggressive path for climate action.

Donald Trump is using the dying embers of his US presidency to hastily push through a procession of environmental protection rollbacks. The actions of the exiting administration will have “extremely damaging environmental consequences”, said Richard Revesz, a professor of environmental law at New York University. “Trump’s counterproductive actions have allowed the climate crisis to intensify and put the health of many Americans, especially in the most vulnerable communities, at risk by ignoring threats from pollution,” he added.

Trump began or completed the process of rolling back 125 environmental rules and regulations, according to an analysis by the Washington Post. Most of those initiatives came under legal attack. The Trump administration lost 82 of 100 legal decisions related to rule making on energy, the environment and natural resources, calculates the Institute for Policy Integrity of New York University's law school. Often these adverse rulings were based on the lack of a suitable administrative record to support the rules — the result of laziness or incompetence at the agency level.

Host Kristin Hayes talks with Michael Livermore and Richard Revesz, cofounders of the Institute for Policy Integrity at the New York University School of Law and coauthors of the new book, Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health. Looking forward, Livermore and Revesz contend that a Biden administration should review federal guidelines for conducting cost-benefit analysis and update the process based on the best available science.

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.