Notice & Comment

Three Ways To Address Midnight Rules, Richard J. Pierce, Jr.

The “midnight rules” phenomenon is well known and well-studied. Every presidential administration issues a disproportionately large number of rules in its final year. Midnight rules issued by the Trump administration present unusual challenges for the Biden administration, however. Virtually all of the hundreds of midnight rules issued by the Trump administration announce and implement policies that are the opposite of the policies that President Biden wants to implement. Moreover, many of the most recent Trump rules are designed to make it impossible for agencies in the Biden administration to take many of the most important actions that President Biden considers essential.

Thus, for instance, on January 6, 2021, Trump’s EPA issued a rule that it describes as a way of increasing the transparency of the science that is the basis for all EPA rules. In fact, that rule would have made it either impossible or extremely difficult for EPA to issue the most important air quality rules it has issued over the past twenty years if it had been in effect during that period. The “transparency” rule will make it either impossible or extremely difficult for EPA to issue any significant air quality rules during President Biden’s term in office. On January 11, 2021, Trump’s EPA issued another rule that precludes EPA from regulating any stationary source of greenhouse gases (ghg) that accounts for less than 3 percent of total U.S. ghg emissions. That rule places off limits to EPA sources of ghg emissions that account for a high proportion of aggregate ghg emissions, thereby rendering EPA largely impotent as a potential source of rules that can mitigate climate change.

One of President Biden’s most urgent tasks will be to identify and implement methods of reversing the midnight rules issued by the Trump administration. The Biden administration has three potential ways of accomplishing that task—use of the Congressional Review Act (CRA), rescission of rules, and letting the Trump rules die a natural death in court. Each option has advantages and disadvantages. The optimum strategy undoubtedly would consist of a combination of the three in which each option is carefully considered in the context of each rule. I believe, however, that the option of letting a rule die a natural death in court is the best option in many cases.

The CRA empowers Congress to veto any rule that an agency issued within the prior sixty legislative days. That period extends back to August 11, 2020. So the use of CRA is an option for a high proportion of the midnight rules issued by the Trump administration. The main disadvantage of the CRA is its consumption of scarce time on the Senate floor. Senate floor time is always a scarce and valuable resource. The period immediately following President Biden’s inauguration may be the period in history in which Senate floor time is most scarce and most valuable. During that time the Senate will decide: whether to convict Donald Trump of inciting insurrection and to render him ineligible to serve the country in any role in the future; whether to confirm each of the hundreds of executive branch officers that President Biden will nominate to staff his administration; whether to enact a variety of emergency measures to address the worst public health disaster in history and one of the worst economic crises in history; and whether to enact any of the many legislative proposals that President Biden considers essential to the implementation of his agenda. That makes use of the CRA an extremely unattractive option.

Agencies have the power to rescind all of the Trump administration’s midnight rules, as well as the hundreds of other rules that the Trump administration issued earlier in President Trump’s term that reflect policies that the Biden Administration considers repugnant. That is an attractive option to use to rescind Guidance documents. Guidance documents consist of interpretative rules and policy statements that are exempt from the notice and comment procedure that the Administrative Procedure Act requires in the case of substantive rules.

An agency cannot rescind a substantive rule, however, without using the notice and comment procedure. In the context of significant rules, the notice and comment process takes an agency an average of four years to complete and requires an agency to commit a great deal of its scarce staff resources to the process. Given the reality that it will take many months for President Biden to staff agencies by persuading the Senate to confirm his nominees, use of the notice and comment process will take so long that the Biden administration is unlikely to be able to complete the process of rescinding many of the Trump administration rules during his term in office.

Moreover, there are so many rules that need to be rescinded that agencies in the Biden administration would be able to devote little time or resources to any efforts to implement President Biden’s agenda by issuing new rules. Thus, recission is an extremely unattractive option for the many rules that can only be rescinded through use of notice and comment.

That leaves the third option—letting the midnight rules issued by the Trump administration die a natural death in court. In the context of any prior administration that would not be a promising option. Agencies in every prior administration of both parties had success rates of about 70 percent in their efforts to defend their rules in court. In the context of the Trump administration, however, this is a promising option. As Bethany Davis Noll documents in an article that will appear in the next issue of Administrative Law Review, agencies in the Trump administration have been able to defend their regulatory actions in only 10 percent of cases. Their extraordinary 90% failure rate is attributable to their failure to comply with the most basic principles of administrative law.

Even a quick glance at the most important of the midnight rules issued by the Trump administration is enough to identify glaring errors that are highly likely to prove fatal to the rules in court and are likely to provide the basis for the issuance of temporary injunctions that will avoid the adverse effects of the rules during the pendency of the review proceedings. Letting the Trump rules die a natural death in court is likely to be the best method the Biden administration can use to eliminate most of the midnight rules that were issued by the Trump administration expeditiously and with little commitment of scarce time and resources.

Richard J. Pierce, Jr. is the Lyle T. Alverson Professor of Law at George Washington University.