AGC has been tracking several regulatory actions relevant to construction that may be advanced in the last weeks of the Trump Administration. AGC considers below what has recently been released and what remains to be completed, as well as, which actions may be vulnerable to change during a Biden Administration.
What Can Reasonably Be Accomplished on Trump’s Regulatory Agenda in the Time Remaining?
The Trump Administration continues to push forward with a full regulatory initiative as seen in its Unified Agenda, released on December 9. AGC is tracking several rules and guidance, some of which are at the Office of Management and Budget (OMB) undergoing review. OMB review can take as long as 90 days (or longer with approval). After that review, any proposed or final rules would then go to the Federal Register for publication, which may become backlogged quickly in the final weeks of the administration. Publication is a key step in finalizing a rule as it assigns an effective date. Major rules are usually effective 60 days from the date of publication, but a sooner timeframe may be chosen if justified.
In the last couple of weeks, the administration has finalized:
- The National Ambient Air Quality Standards (NAAQS) for Particulate Matter (retained prior levels), which has not yet printed in the Federal Register; and
- A revision to the regulations for designating critical habitat (to add a definition of habitat), effective January 15, 2021.
The following items are at OMB for review and may be finalized, if fast-tracked. However, they would still be vulnerable if not in effect before President-elect Biden takes office.
- The final NAAQS for Ozone (proposed to retain prior levels)
- AGC-supported reforms to the Migratory Bird Treaty Act that would remove criminal penalties for accidentally “taking” a bird
- Revisions to the Nationwide Permits
- An Interim Guidance on PFAS (per- and polyfluoroalkyl substances) Waste Disposal and Destruction
The following draft guidance are available for public comment, closing in January 2021. However, even if they are finalized in the time remaining the incoming Biden Administration can easily withdraw them.
- Draft guidance on the surface coatings subject to the Long-Chain Perfluoroalkyl Carboxylate and Perfluoroalkyl Sulfonate Chemical Substances Significant New Use Rule (types of PFAS)
- An AGC-requested guidance document on discharges to groundwater (interpreting the Supreme Court's decision in the County of Maui, Hawaii v. Hawaii Wildlife, 2020)
According to the Unified Agenda, the Trump Administration restated its focus on two objectives in the PFAS Action Plan, which AGC will continue to track in the next administration.
- A proposal to designate Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA hazardous substances (in December 2020) and
- The final Regulatory Determinations for Contaminants Including PFOA and PFOS under the Safe Drinking Water Act (in January 2021).
Finally, AGC commented on a proposed revision to the Multi-Sector General Permit for stormwater discharges, which is still at the agency. The 2015 permit has been administratively continued. The Unified Agenda does not include a projected deadline for finalizing the 2020 proposal.
How Will the Biden Administration Address the Trump-Era Rulemakings?
As with past presidential transitions, the Biden Administration will likely put all rulemaking efforts on hold until it has had a chance to review them; and the incoming administration can immediately issue and/or withdraw executive orders and guidance documents to reverse Trump policies. More specifically, regulatory agencies may put on hold or push back the effective dates of final rules that have not yet gone into effect. To modify or overturn a final regulation that is in effect, an agency would have to go through all the procedures required to issue a new regulation, per the Administrative Procedures Act.
The coming change in administration also increases the vulnerability of several rulemakings that are currently being defended by the Department of Justice in courts across the country. This includes the following AGC-supported rules: Navigable Waters Protection Rule, reforms to the State Water Quality Certifications Clean Water Act (CWA) Section 401 process, reforms to the implementation process for the National Environmental Policy Act (NEPA), and reforms to the Endangered Species Act. Furthermore, environmental groups have already promised to sue over the Migratory Bird Treaty Act reforms referenced above.
A frequent talking point of the Biden campaign has been to undo the regulatory reforms brought about by the Trump Administration. As the transition progresses, environmental groups and legal experts are recommending that DOJ stop defending challenges to specific Trump-era regulations, request a stay of those regulations, or request the court remand them back to the agency to redo. They also recommend issuing new rulemakings that would revise or tweak some of Trump’s rules as a less time-intensive process than it would take to formally repeal and replace the final rule in its entirety.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.