The Biden administration has been on a tear lately, churning out a boatload of new rules and regulations. The Environmental Protection Agency has been especially busy: In just the last month, it has put forward at least a half-dozen major new rules and regulations to reduce the pace of climate change. The most recent set, issued Thursday, targets coal-fired power plants, one of the biggest sources of carbon dioxide in the country.
The frantic pace from the EPA and other agencies is part of a race against the clock. Depending on who controls the White House and Congress next year, many of the regulations being locked in now could be swiftly rolled back. Given the stakes for the future of the planet, that any of the progress is under threat at all feels absurd, if not downright self-harming.
Given the stakes for the future of the planet, that any of the progress is under threat at all feels absurd, if not downright self-harming.
Among the most sweeping, and therefore most vulnerable, changes the EPA has finalized is a rule that requires coal-fired plants to reduce emissions by 90% over the next 15 years or shut down entirely. The rule also applies to future power plants that use natural gas instead of coal, forcing them to capture any carbon emissions they create. Three other rules further limit the amount of mercury coal-fired plants can produce, restrict total wastewater pollutants and mandate the safe disposal of coal ash.
The New York Times framed the regulations as a possible “death blow in the United States to coal” — something that would be a net positive for the planet but will receive tremendous pushback from conservatives. And there are plenty of other targets for that pushback. In the last few weeks, the administration has also finalized rules protecting endangered species threatened by climate change, extended legal protections to LGBTQ students under Title IX and expanded eligibility for overtime pay.
Each of these changes faces a twofold threat. First, all of the regulations, which take years to craft and get through the public comment period, are subject to the Congressional Review Act. Congress has tried to use the CRA several times since Republicans reclaimed the House last year to reverse Biden administration policies. But those resolutions of disapproval, which require simple majorities in both the House and the Senate to pass, are subject to presidential vetoes, which means President Joe Biden can prevent them from taking effect.
Only a relatively small number of resolutions have managed to get past the Democratic-controlled Senate. It’s unclear which party will control either chamber next year, though, with the House narrowly divided and Democrats needing to defend more Senate seats this cycle. If the GOP is in the majority on both sides of the Capitol next year, the number of challenges to Biden-era rules is sure to increase.
The other risk comes from former President Donald Trump. Should he return to the White House next year, he’ll undoubtedly begin the process of reversing these rules, having already pledged to do so. It can be just as slow and unwieldy a process to undo a rule as it is to pass one in the first place — but not if a Republican Congress makes it easy for him by sending resolutions of disapproval to his desk.
Congress for the most part can use the CRA to look only at rules that were finalized during the current session. However, the law includes a “look-back” window that permits lawmakers to review rules passed within the final 60 legislative days of the previous session. Beating that deadline and preventing a potential GOP-dominated Congress from quickly reversing all the current administration’s work is the name of the game for Team Biden right now.
But there’s a further complication: Nobody knows exactly when that clock runs out. The House and the Senate maintain their own legislative calendars, which are unmoored from the constraints of linear time. A “legislative day” typically begins when the chamber convenes after an adjournment and ends when it adjourns again, so a “legislative day” can last several calendar days, or several could be packed into one calendar day. The number of legislative days on the calendar is also subject to change, as recesses could be cut short and must-pass legislation could need to be passed in a lame duck session. The current estimates for when the look-back window opens range from May 22 to late June, according to a survey of experts undertaken by E&E News. Even more costly, though, is the economic effect of not acting to mitigate climate change. On one hand, this scramble is symptomatic of congressional Republicans’ (and a few Democrats’) refusal to support major climate legislation, forcing Democratic presidents to overly rely on executive orders and rulemaking. As a result, we’ve seen wild swings back and forth on climate policy between President Barack Obama’s and Biden’s time in office. Trump spent his administration undoing as much of the former’s efforts to fight climate change as possible and, if he wins in the fall, is poised to do so again with the latter’s. These shifts are extremely costly for businesses forced to guess how long a new regulation may be in place when determining new investments. That uncertainty, as estimated by one economist, prompts a shock wave across the business landscape with each giant policy swing. Even more costly, though, is the economic effect of not acting to mitigate climate change. A recent study from German researchers estimated that “climate change will sap 19 percent of global income by 2050 compared to a world with no climate change, equivalent to $38 trillion every year — six times as much as the estimated cost to limit warming to 2 degrees Celsius,” Splinter recently reported. It’s hard to stress, then, how dystopian it is that these new rules and others like them are so sure to be reversed as soon as possible if Republicans win in November. It’s similarly baffling that the GOP under Trump is so abjectly determined to ensure the worst-case scenario for climate change comes to pass. As wide as the gap is between the two parties on a multitude of issues, no matter how much people can claim they’re the same, only one can accurately be called the greatest threat to humanity’s future.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House. 
