Three Ways To Address Midnight Rules, Richard J. Pierce, Jr. - Yale Journal on Regulation

To obstruct and finally virtually end asylum applications by refugees crossing the southern border the Trump administration used Proclamation and emergency orders to bypass the Administrative Procedure Act , 5 USC 551, et seq. which mandates notice and comment - a cumbersome, time consuming project.

But to overturn and undermine the Obama administration's environmental rules the APA process was employed.  George Washington University law professor Richard Pierce explores how the Biden administration could go about pursuing its very different objectives. - gwc

Three Ways To Address Midnight Rules, Richard J. Pierce, Jr. - Yale Journal on Regulation

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.