When the Biden administration takes office on January 20, environmentalists will breathe a collective sigh of relief. In Biden, observers anticipate a shift toward a more science-based, environmentally friendly agenda following four years of assaults on regulatory agencies and bedrock environmental laws under the Trump administration.  

But a recent flurry of activity from the White House has sparked renewed concern from watchdogs. Since losing the election, the Trump administration has raced to finalize dozens of policy changes and regulatory rollbacks on its way out the door.  

In response, the State Energy and Environmental Impact Center at the NYU School of Law formed the Midnight Watch Project. Its mandate is to monitor all final actions from the administration on the environment, energy, and climate. At the time of publication, the group has listed 34 actions and counting.

David Hayes, executive director of the center and an environmental lawyer, expects the final two months to be a frenzied acceleration of the past four years—“an effort to peel back basic environmental, clean energy, and climate protections and initiatives, many of which are long-standing and bipartisan.” 

Tracking these late moves can be like drinking from a fire hose, but here are some of the most egregious regulatory rollbacks and actions that the Trump administration is likely to carry out in its last few weeks. (For a more comprehensive list, see the Midnight Watch Project website.)

Finalizing rule changes 

Over the course of the Trump presidency, the administration has repeatedly tried to undermine how federal agencies enforce and apply core environmental laws. Now in its waning days, Trump’s EPA is expected to finalize two decisions under National Ambient Air Quality Standards: The agency has proposed retaining old rules and disregarded new scientific evidence in regulating ozone and particulate matter, both of which have deleterious impacts on human health.  

In the case of particulate matter, when the EPA declined to update the old rule, it claimed that particulate matter “raises no environmental justice issues.” In a legal challenge, the California attorney general pointed to scientific evidence showing an estimated 45,000 deaths each year are associated with fine particulate matter, with such pollution disproportionally harming low-income communities and communities of color.

Rules for regulating waterways and drinking water could also cross the finish line before Biden’s inauguration. In 2019, the EPA sought changes to the Safe Drinking Water Act, with provisions to soften public health protections for lead and copper. For instance, the change would allow water utilities to replace aging municipal pipes, a source of lead contamination, less frequently.  

In a separate rule under the Safe Drinking Water Act, the administration has moved to regulate only two per- and polyfluoroalkyl substances (PFAS, or “forever chemicals”), perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS). There are around 5,000 PFAS compounds, in a slew of commercial and industrial products like food packaging, furniture, waterproof clothing, and cookware.

PFAS have been linked to developmental, organ, and reproductive damage in humans as well as cancer. According to a 2015 study in the International Journal of Environmental Research and Public Health, some 97 percent of people in the United States were found to have trace amounts of PFAS in their blood. Another study, published in October in the journal Environmental Science and Technology Letters, found that the water supply for more than 200 million people in the US contains trace amounts of such chemicals.

“It’s fairly common that an outgoing administration—particularly one that is going to be succeeded by a government of a different party—tries to push through a lot of actions before they go away, before they turn into a pumpkin,” says Michael Gerrard, professor and faculty director of the Columbia University Sabin Center for Climate Change Law. He notes that the Obama administration—which, like the current White House occupants, likely anticipated a different electoral outcome—also raced to finalize rules before leaving office. 

In normal administrations, the rulemaking process from start to finish can take many months to well over a year, after which legal challenges can mire rule changes in court. However, the Trump administration has been far less effective than previous administrations—its legal bouts have resulted in more beatings than knockouts, with many proposed rule changes being stalled in the judiciary. 

“The Trump administration was not very good at this process,” says Hayes, noting that the White House often took two or three years to get new regulations in place. He adds that many rule changes were too poorly put together, or too lacking in sufficient evidence, to survive judicial review. 

Nevertheless, to change rules that are finalized prior to inauguration, the Biden administration will have to restart the entire rulemaking process from scratch. Many Trump administration rule changes have been finalized already. These include a set of emissions restrictions implemented under the Obama administration, such as the weakening of the Clean Power Plan, the rollback of automobile fuel-efficiency standards, and a repeal of methane regulations on the oil and gas industry, among others.

Diminishing the civil service

One of the most damaging and long-lasting legacies of the Trump administration has been its assault on civil service and regulatory agencies themselves. According to EPA data, that agency has reduced its staff by about 600 employees, or a 14 percent decrease since 2016. Last year, the administration moved the headquarters of the Bureau of Land Management to rural Colorado and USDA research offices to Kansas City, far from the Washington, DC, power apparatus. Mick Mulvaney, the then White House acting chief of staff, suggested that the move was designed to shed career employees. 

By all indications, the administration isn’t finished undermining civil servants. In October, President Trump issued an executive order to reclassify federal employees and federal agencies to review their employees by January 19. In effect, the order would rescind civil service protections and could potentially, in spite of career status, pave the way for firings. 

“Things like executive orders can be fixed by the next administration,” Hayes says. “What can’t be easily fixed is the legacy of four years of maltreatment of civil servants and transfer away from positions of responsibility.” He also says that the order gives the administration more authority to move aside the most experienced, policy-oriented career employees. 

“The Trump administration has spent the past four years nakedly sidelining science across the federal government,” says Genna Reed, a senior analyst at the Union of Concerned Scientists (UCS). “Not only has this resulted in policies that don’t adequately protect public health and the environment, but it has meant a severe brain drain that has delayed or scrapped government research, policy development, and grant funding.” 

In 2018, UCS conducted a survey at 16 federal agencies and found that of more than 4,200 federal scientists surveyed, more than 1,000 respondents reported low morale and job satisfaction as well as concerns that office effectiveness had declined under the Trump administration. 

Another report released this year from the Environmental Data and Governance Initiative, a watchdog group that tracks federal environmental data, outlines in detail how “Trump political appointees have succeeded in significantly shrinking resources and personnel devoted to environmental sciences within the executive branch.” 

Changes to the regulatory process

Before it heads out the door, the Trump administration is working to permanently minimize the role that science plays in the process of rulemaking itself.

The EPA is moving to finalize a procedure that would direct regulators to preference scientific studies that use public data. The agency claims that the Strengthening Transparency in Regulatory Science rule would ensure that the science underlying regulatory action is publicly verifiable.

While it sounds benign, the “transparency in science” rule could have serious repercussions for the regulatory process, by dismissing foundational studies that are the basis for regulations. For example, in many epidemiological studies—a critical component in assessing the health impacts of pollution—it’s common to keep the data private to protect participant anonymity.

In a letter to the EPA in May, four dozen prominent research institutions and universities joined critics in urging the agency to rescind the rule. “Scientists welcome transparency and encourage scrutiny of their work,” the letter says. “However, this rule and supplemental are not about strengthening science, but about undermining the ability of the EPA to use the best available science in setting policies and regulations.” 

The pesticide industry, among others, strongly support the transparency in science rule. In 2016, the Obama administration moved to ban chlorpyrifos, a class of pesticides linked to brain damage in children. Two chemical companies, Bayer Crop Science and CropLife America, then petitioned the agency to kill the regulation, on the grounds that the underlying data of EPA studies was not made public for verification. (The Trump administration later reversed Obama’s EPA decision on chlorpyrifos.)

Another systemic rule-change, proposed in June and potentially approved before January 20, could fundamentally alter how the agency does cost-benefit analysis when developing environmental regulations under the Clean Air Act. Sean Hecht, professor and co-executive director of the Emmett Institute on Climate Change and the Environment and co-director of the Environmental Law Clinic at UCLA, explains how the rule could lead the EPA to ignore unintended benefits from regulations and, in effect, favor fewer regulations:  

“If a rule were designed under the Clean Air Act to regulate mercury emissions, for example, but the analysis shows that it would also reduce air pollution or greenhouse gases, those benefits couldn’t be considered in the analysis because the rule wasn’t designed for those pollutants. There are a lot of rules with multiple benefits to them, and if you don’t count all the benefits, then you’re not doing sound economics or sound science.” 

Hayes says that the administration seeks to diminish or ignore the unintended benefits from a proposed regulation “in the hopes that the costs to industry will swamp the benefits.” He adds that the move would reverse four decades of established precedent at the agency. 

Yet another big push to change the regulatory process involves how federal agencies administer wildlife protections under the Endangered Species Act. Last year, the EPA moved to revise how it evaluates pesticides’ impacts on endangered species. The changes would limit the scope of EPA review on how endangered species are affected by such chemicals, and it could also preclude analyses into how climate change impacts endanger species habitat. 

Two other proposals deal specifically with habitat designations under the ESA, the basis for protections and enforcement. In August, the US Fish and Wildlife Service and the National Marine Fisheries Service put forth a proposal to limit the scope of habitat protections, and the following month, FWS sought to change definitions for critical habitat to favor industry and development. 

In the area of enforcement, the administration is also finalizing an amendment to weaken the Migratory Bird Treaty Act in the Fish and Wildlife Service. Reversing decades of precedent on historically bipartisan legislation, the proposal would shield industries and developers from liability for incidental bird deaths during normal operations. By opting to punish only bird deaths deemed “intentional,” the rule would effectively give industries, such as oil and gas or construction companies, a free pass.

Lease sales of public lands

In August, the Trump administration announced that it would finalize lease sales for oil and gas development in the Alaskan Arctic National Wildlife Refuge. The decision drew strong criticism from environmental and Indigenous advocacy groups, in part for relying on a deficient and flawed environmental impact statement assessment and failing to account for climate change. While it is still unclear how eager fossil fuel companies will be to bid, the administration is racing to finalize the sales before exiting office in January. 

“This is an area where the outgoing administration could potentially do a lot of damage going out the door, so we’re watching it very carefully,” says Hayes.  

The Arctic Refuge is only the most contentious location for leasing. The administration is also pushing for lease sales on more than 4,100 acres of federal public lands in California’s Central Valley. Despite a court challenge from California state agencies and its attorney general, the lease sales could be finalized in the interim period. The administration also aims to finalize a preliminary plan to open another 6.6 million acres in the Alaskan National Petroleum Reserve to oil and gas leasing. 

“To me, actually doing the auctions of the oil and gas rights at this moment is more consequential than finalizing a proposed rule, because once you have private parties that have purchased those rights, it’s going to be much harder to go back on them,” says Hecht.

“If they do survive litigation, some of these leases are for 30- or 40-year periods,” says Gerrard. “All the other regulations can be undone. It’s necessary to go back through the rulemaking process, but they can be undone.” (Both Hecht and Gerrard note that lease sales could be reversed, but the process is very difficult and multifaceted.)

Gerrard expects that most finalized rule changes will likely end up in court. What will happen then is vastly complicated by the fact that Trump and congressional Republicans have seated nearly 200 federal judges for lifetime appointments. Together, they represent 24 percent of all federal judges.  

Gerrard notes that judges are randomly assigned, “but the more Trump judges there are, the more likely that the challenges go before a Trump judge. Which is not to say that they’re guaranteed to be upheld, but there may be a more sympathetic hearing.”