Clean air standards, water pollution rules and public lands protections have all been scaled back under the Trump administration, which aggressively attacked the administrative state. Under the Biden administration, environmentalists hope to reverse the tide by reviving regulations.

But rolling back the rollbacks won’t be easy. Though the Biden administration may be able to quickly implement executive orders and ramp up environmental enforcement, changes to regulations must go through extensive review processes — that could take years to complete.

Alex Camacho is a Chancellor’s professor of law at UCI and the Faculty Director of the Center for Land, Environment, and Natural Resources at the UCI Law School, and he studies environmental regulations. In this episode of the UCI Podcast, he discusses how regulations are made and unmade, and the ways the Biden administration can advance its environmental agenda.

In this episode:

Alex Camacho, Chancellor’s professor of law at UCI

Center for Land, Environment and Natural Resources at the UCI Law School

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Transcript

AARON ORLOWSKI, HOST

For four years, environmentalists have resisted the Trump administration’s regulatory rollbacks on air, water, and public lands protections. The outlook for the next four years is starkly different and environmentalists are eager to once again reign in pollution and fight climate change.

Why will it be difficult to undo this regulatory undoing. And how can the incoming Biden administration advance its environmental agenda?

From the University of California, Irvine, I’m Aaron Orlowski. And you’re listening to the UCI Podcast. Today, I’m speaking with Alex Camacho, who is a Chancellor’s professor of law at UCI and the faculty director of the Center for Land Environment and Natural Resources at the UCI Law School.

Professor Camacho, thank you for joining me today on the UCI Podcast.

ALEX CAMACHO

Thank you for having me. I appreciate the opportunity.

ORLOWSKI

Well, let’s start by talking about the regulations that the Trump administration has attacked in the last four years. What are the broad categories of environmental regulations that have been rolled back?

CAMACHO

Unfortunately, there’s so much to talk about in that regard. So I’ll just say sort of the general buckets. There’s a number of general sort of administrative law changes that they’ve done. And then they’ve done some specific to particular environmental agencies. So generally speaking, they’ve cut funding, they sort of cut, demoted and moved agency experts, especially some of the most experienced ones. They changed agency procedures to limit the use of science. The administration also added this two-for-one executive order, which basically says for every new regulation you’re adding, you need to cut out two other ones. They recently tried to automatically sunset any regulation older than 10 years old. So basically saying, unless the agency acts affirmatively, the regulation will go away. And they’ve weakened agency enforcement. So those are all sort of the general things that they’ve done. But besides that, they’ve made each individual agency, like EPA, Department of Interior, or Council of Environmental Quality, have done their own sort of set of regulations that they’ve also mostly been scaling back, rolling back regulations.

ORLOWSKI

Have there been attacks on specific environmental categories, for instance, clean air regulations or public lands protections or different elements of environmental administration?

CAMACHO

Frankly, all of the above. I mean, it really has been — there hasn’t been just a targeted sort of attempt to roll back. They’ve actually tried a comprehensive approach. So EPA has drastically scaled back protections for certain kinds of wetlands, streams and marshes. They tried to revoke California’s authority under the Clean Air Act to set standards for auto pollution. They’ve rescinded and replaced Obama regulations on greenhouse gases and on methane. And that’s just EPA. So they’ve gone after water. They’ve gone after air. That’s the primary buckets. But they — you’ve got the Department of Interior reducing some of the national monuments that were identified and widely popular in a lot of western states. They also reinterpreted the Endangered Species Act to reduce a variety of different things, but including reducing consideration of climate change impacts on species. They certainly ramped up leasing of offshore oil and gas. And, and I mean, again, those are just two agencies.

The Council of Environmental Quality has attempted to make major changes to the National Environmental Policy Act. Some other executive orders that really try to minimize environmental review in the name of building more infrastructure. So it really has been quite comprehensive and frankly, both Democratic and Republican prior administration agency officials have called Trump’s actions terrible for the environment. It certainly hasn’t just been Democrats that have been railing against it. It’s certainly been former EPA officials that are appointed by Republican administrations (who) have also said that a lot of those sort of comprehensive rollbacks are bad. And frankly, the courts have agreed.

ORLOWSKI

Well, I think it will be helpful to learn a bit more about how these regulations are created in the first place to learn more also about how they’re rolled back. So what is the process for creating these regulations, which are often really complex and full of details?

CAMACHO

In many ways the rollback is related to how they get created in the first place, as you mentioned. So, if we’re talking about cutting funding and budget, well, obviously that’s one where you would think, well, you know, in the new appropriations, the budgets increase. But even then, you know, each time things get cut — just to put it back to where it was before it looks like you’re increasing funding. It’s hard to sometimes politically get that to occur. But that’s probably one of the easier ones. Executive orders — which are really the president sort of adopting an order — and those often don’t require much other than the president being willing to do so. Enforcement, obviously, they can change enforcement priorities, which does require funding, but also it can be something that an administration can do relatively straightforward.

But regulations, regulations can be more complicated, because depending on how the regulation was adopted — generally speaking administrative agencies have to follow what’s called a notice and comment process, where initially they propose a rulemaking, where they say, this is rulemaking that we’re thinking of doing. Then they open it up for public comment for a period of time. And then they are supposed to take those public comments and either integrate the comments into their changes to the originally proposed rule or respond to those comments and explain why those comments are wrong or why they are not going forward with those. And then after that, it eventually gets adopted as a final rule. And at that point, often, certainly lately, it gets challenged in court. And the courts have an ability — a limited ability, but an ability — to review the agency’s decision to determine whether it was either arbitrary or capricious, as the often the standard is. Or sometimes it’s a different standard, like did they use substantial evidence to support their decision.

ORLOWSKI

So that’s quite a lengthy process for creating these regulations. But what is the process for undoing them? Is that process also quite long?

CAMACHO

It’s quite, it’s quite similar, but it depends on what point in the process the new administration comes in. But generally speaking, the general answer is that however it was to create a regulation in the first place, it’s the same process for undoing it. So obviously when we’re talking about enforcement, if the new administration comes in — and in fact, the Biden administration has said that it does — that they can reinvigorate federal agency enforcement relatively quickly. I mean, they need the budget, but, and indeed president-elect Biden has said he plans to create a new division at the Justice Department focused on environmental and climate justice. On budget pieces, they can obviously do it through pushing congressional appropriations, but it does require congressional help on that front.

Some of the other things they’ve been doing, like I alluded to a little bit, so they’ve been fighting California. Obviously they can just reverse course on that. They can work cooperatively with states like California. Executive orders, those can be reversed right away. And then they can be replaced with new executive orders with the stroke of a pen. So some of those ones I mentioned before, like the two-for-one regulation policy, or rushing infrastructure permitting, those can be reversed right away, just by rescinding the prior executive order. Rulemakings, if you follow the notice and comment rule process and went through that all, and you went through court and the court upheld the agency’s decision, the reversing of that requires the same thing. And often it can be even sometimes more difficult because now you have to explain why the prior regulation was wrong. But where it can be easier is that quite, quite often, these rulemakings are still pending. If it’s still literally pending, meaning the agency was still in that initial proposed rulemaking process, or hadn’t finalized it completely, they can simply retire it. And there are some examples of that. I think there’s one right now, their ongoing review of the current standard for fine particulate air pollution. The current administration doesn’t have enough time to finalize it. So those kinds of things can be just retired.

Pending litigation is another one where once the agencies approved the regulation, but it’s being litigated — and quite a few of them are because a lot of them sort of lack of support — the administration can choose not to defend it in court and return to the preexisting regulation. Of course, if there are others who are in support of that rule, like industry representatives, etc, the litigation might still continue. But the fact that the administration might choose not to defend it, it makes a big difference. But the last one — and like I  mentioned before — it is harder to repeal final regulations. The agency has to basically give a reasoned explanation and provide that sort of public notice and comment process. But it can be done. So it really depends on the individual regulation that we’re talking about.

ORLOWSKI

Earlier, you mentioned that the Trump administration has been critiqued from various sides for this harsh treatment of regulations, this attack on regulations. Is this attitude different from previous presidential administrations in a significant way?

CAMACHO

Yes. I think most commentators, most people who’ve been paying attention to it, would agree. I think again, generally they have been hostile to regulation and hostile to science. I think that’s probably the first characteristic that is a feature of the Trump administration’s legacy, in dealing with the administrative state. But I think the second one, I would say at least as much, is it’s been relatively arbitrary and sloppy. That is, when you create a rule that says something like the two-for-one rule, which as I mentioned before, it’s like every time you create a new regulation, you have to retire to other ones. That’s arbitrary. To say that you’re going to two-out, one-in, there’s no empirical basis for saying that you should get rid of two regulations for every new one, other than just to say, I don’t like regulation.

But besides that — and this is where in some ways one would be surprised, but maybe not — is that they largely have rushed this regulatory approach. And often haven’t followed the law. And it’s born out in court. So studies that have looked at the record of the administration in court, and less than 19 percent — they have less than a 19 percent win record in court on environmental regulatory changes. And overall, in all regulation, they’ve got a 17 percent win record in court. And this is again with Republican and Democratic judges. That’s incredibly low. So it’s not just that they’ve been hostile, but they’ve also been arbitrary and sloppy. And by and large, the courts have recognized that and rejected it. But I think ultimately the administration approach tends to be, we’ll just try a bunch of stuff and hope some of it sticks, and some of it does stick. Some of it, as I mentioned, 19 percent is a terrible win record, but it still is 19 percent. So it’s the approach that they’ve adopted.

ORLOWSKI

Well let’s talk a little bit more about what the incoming Biden administration could do to advance its environmental agenda. And we’ve talked a lot about the regulations and executive orders to undo those or create new ones. But one crucial element will be who controls the Senate. Two Democrats are running against two Republicans for the Georgia Senate seats in a runoff election in early January. So either party could control the Senate after that. How different do you think those two scenarios are for the world of environmental regulations?

CAMACHO

It’s a significant difference. The primary difference is that the ability to enact meaningful environmental legislation — he’s pretty much limited if the Democrats don’t control the Senate. I mean, it’s hard to look into the future and given the rancorousness and partisanship, it’s hard to imagine that a Republican controlled Senate would be interested in enacting meaningful environmental legislation. But I mean, who knows? That being said, its ability is significantly diminished. The other way that it makes a difference is that what’s called the Congressional Review Act is only available if the Democrats control the Senate. What the Congressional Review Act does is it allows Congress 60 legislative days — so days that it’s open — from when a regulation is submitted to Congress to issue basically a joint resolution that nullifies a regulation. So if Congress takes that kind of action, then the executive branch is barred from adopting a regulation that’s seen as substantially similar. So I mentioned a variety of different ways that regulations might be overturned. The Congressional Review Act is one way that that can happen. But it only works if your party probably has control of the Senate. So it’s definitely more limited if they don’t have both chambers of Congress. That being said, you know, there are significant things the administration can do even without a Democratically controlled Senate.

ORLOWSKI

Well and one of the elements that requires at least some bipartisan cooperation is the budget. And the federal government spends a lot of money on the work of governing, from buying electricity for buildings to purchasing cars for agencies. So how powerful is this power of procurement, and could the Biden administration use that to support environmentally friendly industries?

CAMACHO

And the purchasing power, as you mentioned, of the federal government is significant. So certainly that’s something that the federal government has used quite often in developing environmentally friendly policies. The federal government can often be a first mover. The fact that it’s able to purchase certain more sustainable products, etc, certainly often gives a jolt to a particular industry through its purchasing power. But it’s also true that the greenhouse gas footprint, or the environmental footprint, of the federal government is significant. So for example, one of the Obama-Biden administration’s first moves on climate change was to get the federal government itself to be more climate proof, more climate friendly through its purchasing, as you mentioned, but also through its building and also through its resource and energy use. So yes, there are certain very straightforward things that can move in that direction.

ORLOWSKI

And what about cabinet picks? The Biden team has been announcing a number of different cabinet picks for the realms of foreign policy and national security, the economy, health. But how could environment and energy picks begin to turn things around?

CAMACHO

It can make a significant difference. I alluded a little bit before to the fact that certainly having the ability to make legislation makes a big difference, but there’s still lots of that can be done without legislation. So who the Biden administration picks for environment and energy posts can make a big difference in sort of pushing the envelope on environmental issues. And I think there is some tension from what we’ve been seeing right now. Certainly some progressives are seeking more transformational change through the administration — things like the Green New Deal. Others are adopting a more moderate approach. And so I think one of the major challenges for this administration is trying to figure out — unfortunately there’s so much to do. And we’ve only talked about rollbacks by the current administration, but there’s more that can be done affirmatively. One of the major challenges for this administration is figuring out what to prioritize, obviously within environmental policy, but more generally, there’s so much to do. We’re talking about, obviously in the middle of a coronavirus pandemic, calls to address racial equality, but clearly climate and other environmental issues is also one of the pillars that this current administration has said that they’re interested in addressing. So those cabinet picks, and whether they take a more progressive or more moderate (approach) — I expect it to undoubtedly, regardless of whether the more moderate or progressive (approach), to make a huge difference compared to the prior administration.

ORLOWSKI

One of the candidates who has been discussed potentially for EPA is Mary Nichols. And she’s here from California, the chair of the California Air Resources Board, which oversees air pollution regulations in the state, including our cap and trade climate change program. So can you tell us a little bit about what has been Mary Nichols’ influence on regulations here in California?

CAMACHO

Yeah, she’s had a considerable influence, one of the highest profile figures when it comes to California environmental law. She’s most known for spearheading a lot of California’s implementation of California’s climate change mitigation activities. She’s been nationally pretty high profile in taking on mobile source, greenhouse gas regulation. In the past few years, (she’s been) taking on the Trump administration and trying to stop California from it’s Clean Air Act-authorized activities. So she definitely has a strong environmental profile, but she has been criticized by environmental justice groups for being really more focused on overall environmental protection, but not really paying attention to the particular disproportionate effects of environmental problems and pollution on people of color, what we often refer to as environmental justice. So there are definitely some environmentalists that are critical of Mary Nichols.

ORLOWSKI

And what kind of change might she be able to bring to the EPA if selected?

CAMACHO

I think she would be really advancing EPA’s core goal for environmental protection — something that hasn’t happened in the past four years. She does have a reputation for working with environmental groups, but also being pretty effective with industry. So I think that certainly — when I mentioned before in dealing with California regulations and going up against the Trump administration — she’s been pretty effective in getting the auto industry to come aboard, at least some members of the auto industry, to come aboard. I think she would likely take that approach back to the federal government. I say back to the federal government because she is just finishing her second stint in California as the head of the California Air Resources Board, but she also was a deputy administrator for EPA under Clinton. So she’d be coming back to the agency. So she has deep knowledge of the agency. And I think unless there’s a Democratic Senate, she’s going to use her existing authority to advance environmental protection and in particular climate regulation nationally, which is what she’s been doing in California, I think, using existing law to advance environmental protection.

ORLOWSKI

Well, as you look at how the Biden administration is going to try and shore up environmental protections, what is at the top of your wishlist for things that they could do?

CAMACHO

So I guess I would say, for me, I think what’s clearly the big elephant in the room for environmental protection clearly has to be climate change. And I think we often — those of us who write about or think about climate change — often sort of break it up into at least two different buckets: what we call climate change mitigation and climate change adaptation. And climate change mitigation really is trying to reduce greenhouse gas emissions and figuring out approaches for doing that. Climate change adaptation is important as well. What climate change adaptation is, is preparing for the effects of climate change. So unfortunately some of the global climate change is already baked into our climate. And so figuring out ways to adapt is important as well.

So I think both of those would be — if I can cheat and put two on my wish list — I would say climate change mitigation, reentering into the Paris agreement, but going beyond that and using the Clean Air Act to advance domestic greenhouse gas regulation for both cars and automobiles, but also stationary sources, especially in the power sector. So that bucket of just trying to reduce greenhouse gas emissions. So, clean energy transition. But then also we really need to be adapting as well, getting the federal agencies, the states, local governments, private parties, back to preparing for the effects of climate change. Those are things that we were just starting to do in the Obama administration. And a lot of that has been curtailed. So there’s really so much to do. And even that alone is a huge lift.

ORLOWSKI

Well, Professor Camacho, thank you for joining me today on the UCI Podcast.

CAMACHO

Thank you so much. I appreciate it.