Shortly before the elections, Biden is pushing for a series of environmental regulations


WASHINGTON — To secure his legacy, President Joe Biden has issued a barrage of regulations on environmental protection and other issues this election year, including a landmark rule that would force coal-fired power plants to capture emissions from their smokestacks or shut them down.

Limiting greenhouse gas emissions from fossil-fuel power plants is the Democratic president's most ambitious plan yet to curb planet-warming pollution from the energy sector, which is the second-largest contributor to climate change in the United States.

The power plant rule is one of more than 60 regulations Biden and his administration passed last month to achieve his policy goals, including a promise to roughly halve carbon emissions that drive climate change by 2030. The regulations, led by the Environmental Protection Agency but involving a number of other federal agencies, are being issued in rapid succession as the Biden administration tries to meet a looming but uncertain deadline to ensure they are not overturned by a new Congress — or a new president.

“The Biden administration is in green blitz mode,” said Lena Moffitt, executive director of the activist group Evergreen Action.

It's not just the environment

The flood of regulations affects more than just the environment.

With Election Day approaching, Biden's administration has enacted or proposed regulations on a wide range of issues – from student loan forgiveness and affordable housing to overtime pay, health care and compensation for airline passengers who arrive unreasonably late – as he tries to win votes in his re-election battle against the likely Republican nominee, Donald Trump.

Overall, federal agencies broke records in April by issuing 66 major final regulations, more than in any other month during Biden's presidency, according to the George Washington University Regulatory Studies Center. More than half of the regulations – 34 – are expected to have an economic impact of at least $200 million, the center said.

This number is by far the highest that a new president has issued in a single month, according to the center. The closest was the 20 such rules that Trump issued in his last month in office.

Biden is not shy about touting the rules. For example, he traveled to Madison, Wisconsin, to promote his student loan relief measures after the Supreme Court rejected his original plan. Increasingly, Cabinet members are traveling across the country, often in swing states, to promote the administration's actions.

The problem with the rules

Once a new administration takes office, measures created through legislation can be more easily reversed than laws, especially when Congress is deeply divided.

“There is no better time to start than today,” Biden said on his first day in office as he began to clean up Trump’s legacy.

During his presidency, Biden has restored endangered species protections that Trump rolled back and increased fuel efficiency standards, reversing the former president's decision.

The Department of Education's work-study rule targets college programs that leave graduates with high levels of debt relative to their expected earnings. And the Department of Housing and Urban Development has pushed to reinstate a rule designed to address racial disparities in suburbs that was scrapped by Trump.

It is widely expected that if Trump wins the election in November, he would seek to reverse the regulations introduced by Biden.

Deadlines are approaching

The Congressional Review Act allows lawmakers to invalidate new laws after they are passed by the executive branch. Republicans in Congress used the once-obscure law more than a dozen times in 2017 to undo actions taken by former President Barack Obama. Democrats returned the favor four years later by repealing three Trump administration laws.

The law requires a vote to be taken within 60 days of a rule being published in the Federal Register. That deadline varies depending on how long Congress is in session. Administration officials believe that the law will not review the measures taken so far this year in the next Congress. Republicans, however, oppose almost all of the measures and have filed objections that could lead to a series of votes in the House and Senate in the coming months.

Biden is likely to veto any repeal attempt that lands on his desk before the end of his term.

“The rules are safe in this Congress,” said Michael Gerrard, who teaches environmental law at Columbia Law School, given the Democratic majority in the Senate and the White House. If Republicans take the majority in Congress and the White House next year, “anything is possible,” Gerrard said.

Rule-making to leave a legacy

In addition to the power plant rule, the EPA also issued separate rules addressing exhaust emissions from cars and trucks and methane emissions from oil and gas drilling. The Interior Department, meanwhile, restricted new oil and gas leases on 13 million acres of a federal oil reserve in Alaska and required oil and gas companies to pay more for drilling on federal lands and meet stricter requirements for cleaning up old or abandoned wells.

Industry associations and Republicans criticized Biden's actions as an overreach.

“This spate of new EPA rules ignores our nation’s ongoing challenges with electricity reliability and is the wrong approach at a critical time for our nation’s energy future,” said Jim Matheson, CEO of the National Rural Electric Cooperative Association.

In addition to climate action, the EPA has also passed a long-delayed ban on asbestos, a carcinogen that kills tens of thousands of Americans each year, and set strict limits on certain so-called “forever chemicals” in drinking water. The EPA has also required more than 200 chemical plants across the country to reduce toxic emissions that can cause cancer, particularly in poor and minority communities already overburdened by industrial pollution.

Many of Biden's actions were implemented only recently but have been planned since he took office. He has reinstated or strengthened over 100 environmental regulations that Trump had weakened or eliminated.

These regulations come two years after Democrats passed a comprehensive clean energy bill that is widely hailed as the most significant climate change legislation ever.

Taken together, Democrats say, the climate bill and Biden's executive actions could solidify his position with climate-focused voters – including young people who put Biden in office four years ago – and help him defeat Trump in a likely rematch in November.

“Every community in this country has the right to breathe clean air and drink clean water,” said EPA Administrator Michael Regan. “We have promised to listen to the people who suffer from pollution and to act to protect them.”

“Challenging times”

In addition to the vote in Congress, the regulations are also likely to be challenged in court by industry and Republican-led states; several lawsuits have already been filed.

“Part of our strategy is to make sure we understand the current judicial culture that we are in and to make sure that every action, every rule, every policy is more sustainable and as legally sound as possible,” Regan told a conference of environmental journalists last month.

Looming over all the executive actions, however, is the Supreme Court, where a 6-3 conservative majority is increasingly restricting the powers of federal agencies, including the EPA. A landmark 2022 ruling limited the EPA's authority to regulate carbon dioxide emissions from power plants that contribute to global warming, and another ruling weakened regulations protecting millions of acres of wetlands.

A case pending in court could put the EPA's “Good Neighbor” plan to combat air pollution on hold while litigation continues.

“We are living in difficult times in many ways, but we at EPA remain focused on our mission,” Regan said at the April conference. “And then we have to defend this case in court.”

There are also legal challenges to regulations issued by other authorities.

Republican-led states are challenging the administration's new Title IX rules that offer expanded protections for LGBTQ+ students and new safeguards for victims of sexual assault. They are also suing to overturn a rule requiring background checks on buyers at gun shows and outside stores.

Gerrard, a law professor at Columbia University, said the risk of executive actions being overturned by Congress or the courts “makes it hard for either side to build any momentum.” That uncertainty also makes it harder for industry to comply with the rules because it isn't sure how long the rules will remain in place.

Climate perseverance?

Gerrard and other experts said the climate bill and the bipartisan infrastructure bill passed in 2021 are more permanent and would be harder for a future president to undo. The two bills, combined with executive action, will put the country on track to meet Biden's goal of net-zero carbon emissions by 2050, environmentalists say.

The climate bill, which calls for nearly $400 billion in spending to promote clean energy, will have ripple effects on the economy for years to come, said Christy Goldfuss, executive director of the Natural Resource Defense Council and a former Obama administration official.

She rejected complaints from industry and Republicans that the power plant regulation was a continuation of the Obama-era “war on coal.”

“It's an attack on pollution,” she said, adding that fossil fuels like coal and oil are subject to the Clean Air Act “and must be cleaned up.”

West Virginia Attorney General Patrick Morrisey, who led the lawsuit in the 2022 Supreme Court case, said the EPA is sticking to what he called Biden's “Green New Deal” agenda.

“Unelected bureaucrats continue to try to pass laws rather than relying on elected members of Congress for their advice,” said Morrisey, the Republican candidate for the state's governor.