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The Insider

Democrats are beginning to declare victory for former Vice President Joe Biden in the presidential election as swing states continue to fall his way, setting the stage for a rush by EPA to finalize a host of pending high-profile deregulatory policies in President Donald Trump’s current term.

Those measures include long-awaited limits on the agency’s use of science in rulemaking, and will be top priorities for the administration if Trump prevails in his bid for a second term. At press time Biden held narrow leads in states like Pennsylvania, Arizona, Georgia and Nevada -- any two of which would put him over the 270 electoral vote threshold to win the presidency.

But Trump is not expected to concede the race and could mount a court challenge to the results, prolonging uncertainty about the final election outcome.

Meanwhile, the lame-duck Congress faces a Dec. 11 deadline to pass new federal appropriations, and could also address the expiring surface-transportation program as well as a bipartisan energy bill that includes a hard-fought compromise on phasing out hydrofluorocarbons (HFCs).

Regardless of the presidential election winner, observers already expect EPA to shift its focus to finalizing a host of pending rules and regulatory actions before Jan. 20:

Observers Fear Disruptions Amid Busy Post-Election Trump EPA Agenda
The Trump EPA’s agenda is expected to be crowded in the coming months as officials aim to lock in deregulatory approaches amid a possible transition to a Biden administration, with some observers also expressing concern that the president’s recent civil-service executive order could drive disruptive, late-hour personnel moves.

Examples of likely high-priority rules to complete in the coming weeks include a pending regulation to restrict use of scientific data not publicly available, a plan to rewrite cost-benefit analysis procedures for Clean Air Act rules, and regulations to lock in the existing particulate matter and ozone standards, according to agency and other observers.

Another key regulatory action includes rewriting Obama-era greenhouse gas limits for new power plants, which Trump officials earlier projected could see final action in “late winter.”

Other areas to watch include “meat and potatoes” actions such as permits or other approvals under multiple programs, or policies that the agency can move without requiring formal rulemaking.

The administration has been pushing hard to issue as many rules as it can before January, with two dozen EPA rules under White House Office of Management & Budget (OMB) review as of Nov. 6, including the draft final science rule, sent to OMB on Sept. 14, and the draft final air cost-benefit rule, which the White House received Oct. 21.

Of note, OMB’s website says that on Nov. 4 it received a draft final rule expected to lock in EPA’s existing particulate matter air quality standards -- the first agency policy to go to OMB after the election.

EPA staff could also face sudden upheaval as a result of Trump’s recent executive order (EO) that allows agencies to reclassify some career staff as outside civil service protections and thus subject to political hiring and firing decisions, the first round of which could come before the inauguration:

EPA Staff, Others Brace For Possible Post-Election Staffing Shuffles
EPA staff and other observers are bracing for potential personnel moves by Trump administration officials in the coming weeks amid a possible transition to a Biden administration, including last-minute reorganizations or staffing shuffles based on a recent executive order (EO) from President Donald Trump.

The personnel-related fears at EPA have accelerated in the wake of Trump’s controversial EO 13957, issued Oct. 21, creating a “schedule F” classification for career staff positions “of a confidential, policy-determining, policy-making, or policy-advocating character.”

Under the policy, such workers would not enjoy typical civil service protections and could be hired or fired at will, and the order seeks a “preliminary review” within 90 days of positions covered by that order and a “complete review” within 210 days.

The timeline for action suggests final action could not occur until well after Inauguration Day on Jan. 20.

But the fact that the preliminary review would conclude Jan. 19 -- as well as the possibility that action could be accelerated -- is triggering concerns among agency staff, unions and Capitol Hill lawmakers.

“People are really nervous about the” EO, says one EPA source, adding that the mood is “very subdued today during meetings.”

Meanwhile, Congress is likely to turn to fiscal year 2021 spending bills during the lame-duck session, with current appropriations set to expire on Dec. 11. Debates will focus in part on Democrats’ bid to boost EPA’s budget, in line with the full-year spending bills they passed in summer, as well proposals from groups seeking to bolster the agency:

EPA Alumni Outline Multiyear Plan For Potential Agency Funding Boost
Former EPA administrators and staff are outlining a guide for the agency to work with Congress on securing a public declaration for rebuilding EPA’s budget to its 40-year average in “real dollars,” proposing a four-year goal of hiking the total annual spending to the equivalent of $11.4 billion in 2019 dollars.

The EPA alumni, known as the Environmental Protection Network (EPN), floated the plan in a recent report backed by six former agency chiefs that also calls for bolstering the agency’s workforce, including a call to expand on prior workforce planning efforts and strengthen recruitment and hiring of diverse staff.

“EPA has been substantially ‘hollowed out’ from inadequate resources that have long been dangerously declining to the point where EPA is spending, in real dollars, less than half what the agency spent 1980,” EPN says in detailed budget recommendations that are part of a broader report released in August titled “Resetting the Course of EPA.”

The FY20 appropriations law set EPA’s budget at roughly $9 billion, and Trump’s annual budget requests repeatedly call for less funding for the agency, suggesting he would pursue the same approach if he wins a second term.

And supporters of increasing EPA’s funding acknowledge such recommendations could face political headwinds including future renewed calls to limit federal spending after years of rising deficits.

Other items on the legislative agenda could include either a full reauthorization or short-term extension of surface transportation funding, where Democrats have pushed to include climate provisions in a new bill; energy legislation including a 15-year drawdown on HFCs; and the FY21 National Defense Authorization Act, slated for House-Senate conference committee negotiations soon, which could include significant measures on polyfluoroalkyl substances (PFAS):

Environmentalist Eyes 2021 As Congress Battles Over NDAA’s PFAS Policies
As Congress battles over the range of polyfluoroalkyl substances (PFAS) provisions in pending defense authorization legislation, an environmentalist says lawmakers returning next year are expected to continue efforts to advance measures that did not make it into the defense bill as well as additional policies.

“There has been an unprecedented amount of interest in PFAS in the 116th Congress, with more than two dozen provisions on PFAS becoming law, and dozens more proposed,” Melanie Benesh, a legislative attorney with the Environmental Working Group (EWG), said in an Oct. 23 presentation at the American Bar Association’s energy and environment fall meeting.

During the past few Congresses, the NDAA has emerged as a prime legislative vehicle for enacting federal PFAS policies, a trend that Benesh expects to continue into the next Congress. For instance, the FY20 NDAA enacted last December included a requirement that EPA finalize a significant new use rule (SNUR) under TSCA for long-chain PFAS.

But the House-Senate conferees negotiating the FY21 NDAA are facing big differences between the two chambers’ bills on PFAS.

House lawmakers included a wide range of provisions in their version of the bill, but the Senate approved many fewer. Such differences have been heightened since each chambers’ passage of the legislation. While a bipartisan group of House lawmakers has urged the conferees to preserve their chambers’ PFAS provisions, a bipartisan group of senators have called for a scaled-back set of amendments.