As a critical deadline approaches, the Biden administration issues a flurry of regulations

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The Biden administration has been issuing a flurry of new regulations in the last several weeks to make it harder for them to be cast aside if this fall’s elections don’t go Democrats’ way.

The new rules cover subjects as varied as marijuana policy, vehicle pollution, civil rights for transgender students, airline passenger protections, and drinking water safety.

Getting the rules on the books before the last weeks of May puts them on firmer ground if Republicans take control of the White House and Congress next year. That’s because the Congressional Review Act allows Congress to overturn rules issued after that date with a simple majority—even bypassing the Senate’s normal filibuster rules—and the president’s approval. If Congress blocks the last-minute rules, the agencies that drafted them cannot replace them with similar regulations without congressional approval.

The law doesn’t come into play very often, but Democrats likely learned how powerful of a tool it can be when a Republican Congress and former President Donald Trump used it to overturn 16 Obama administration rules in 2017. Democrats used the same law to unwind three Trump-era rules after President Joe Biden took office in 2021.

There were nearly 500 preliminary Biden administration proposals in the works as of early April, noted Jason Rittenberg of SSTI, a nonprofit group that promotes science, technology, innovation and entrepreneurship. Since then, federal agencies seem to be trying to get as many of them across the finish line as possible.

Of course, even if Biden wins reelection and Democrats hold onto Congress, many of the administration’s initiatives will face legal challenges, particularly from Republican state attorneys general. Partisan legal attacks on federal policies have become more commonplace since the George W. Bush administration, but, under Biden, the Supreme Court has made challenges for administrative overreach easier to win.

In a 2022 decision about greenhouse gas pollution, the high court adopted a “major questions doctrine” that limits federal agencies’ ability to regulate areas that have major effects on the economy or politics, unless Congress explicitly grants them the right to do so. Republican AGs have invoked that doctrine to attack numerous other Biden administration initiatives as well.

Meanwhile, though, the administration has pushed through dozens of rule changes, including:

Civil rights protections for transgender students. The federal Education Department extended civil rights protections to LGBTQ+ students and victims of sexual assaults. The regulations under the 1972 Title IX law apply to entities—including local schools—that receive federal funding. Although the administration’s rules do not address the right of transgender students to participate in organized sports, several state Republican officials chafed at provisions in the regulations that include a definition of “sex” to include “gender identity.” Officials in at least three Republican-led states—Arkansas, Oklahoma and Texas—have told local schools not to comply with the regulations, which go into effect in August. They are among the states that have passed laws dictating which bathrooms and pronouns transgender students are allowed to use, laws that would directly contradict the new Title IX regulations. At least 15 Republican attorneys general have filed or joined lawsuits seeking to block the law.

Regulations reducing the presence of forever chemicals. The Environmental Protection Agency has taken several measures to reduce the prevalence of PFAS, a class of chemicals that never fully degrade in the environment and pose health hazards to humans. The EPA required municipal water systems to remove six of the PFAS compounds from their drinking water. The agency estimates it will cost local systems $1.5 billion every year to comply with the rules. Biden’s EPA also added two of the chemicals to its list of hazardous materials that fall under the agency’s Superfund authority that forces polluters to pay for the cost of cleanups.

Emissions standards for trucks and heavy vehicles. Congressional Republicans are already fighting to overturn new emission standards for trucks and heavy vehicles that the EPA finalized in March. Delivery trucks, refuse haulers and public utility trucks would have to reduce greenhouse gas pollution by up to 60%. Tractor trailers would have to see reductions of up to 40%. The Biden administration announced $1.5 billion in grants to smooth the transition, but trucking industry leaders and Republicans say the new rules are unrealistic.

Requirements for passenger cars to improve pedestrian safety. The National Highway Traffic Safety Administration released new regulations that would require new passenger cars, SUVs and light trucks to include automatic emergency braking—including for pedestrians—by 2029. Safety advocates largely praised the move, which follows similar efforts by European safety regulators.

Reclassifying marijuana. The Drug Enforcement Administration is moving to reclassify marijuana as a less dangerous drug and recognize its use for some medical purposes. The move is still in the early stages of federal rulemaking, meaning it could take months or years to become finalized. Still, it is a major shift in federal policy and a tacit acknowledgment of the effect of state laws that have decriminalized marijuana possession, sales, and production for medicinal and recreational purposes. In the past, Biden has also called on governors to pardon people for drug offenses involving marijuana. That said, many state officials in places like Tennessee are still wary of decriminalizing the drug.

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News to Use

Trends, Common Challenges, Cool Ideas, FYIs and Notable Events

• ABORTION: Arizona has repealed an 1864 law’s near-total ban on abortion. With a stroke of a pen on Thursday, Gov. Katie Hobbs struck down the 160-year-old abortion ban. Just a day earlier, Democrats in the state Senate succeeded in peeling away enough Republican votes to repeal the ban first passed while Arizona was still a territory. The push to repeal it came after the state Supreme Court ruled it was once again enforceable. But while Hobbs’ approval removes that threat from state law, she noted that access to abortion is still not guaranteed. With the repeal of the 1864 law, a 2022 law banning abortions after 15 weeks takes precedence. 


• LGBTQ RIGHTS: Court says state health plans can’t exclude gender-affirming surgery. A federal appellate court in Richmond, Virginia, became the first in the country to rule that state health-care plans must pay for gender-affirming surgeries, a major win for transgender rights amid a nationwide wave of anti-trans activism and legislation. The decision came from a set of cases out of North Carolina and West Virginia, where state officials argued that their policies were based on cost concerns rather than bias. The U.S. Court of Appeals for the 4th Circuit rejected that argument, saying the plans were discriminating against trans people in need of treatment and were “obviously discriminatory” based on both sex and gender.


• AIRPORTS: FAA deal in Congress includes new airfare refund requirements. Key members of Congress announced an agreement Monday on a $105 billion bill to reauthorize the Federal Aviation Administration for five years ahead of a May 10 deadline. The 1,000-page bill would raise hiring targets for air traffic control and would codify in law a rule the Biden administration introduced this month requiring airlines to offer refunds for canceled or significantly delayed flights, among other consumer-focused provisions. The bill would authorize $66.7 billion to fund key safety programs such as aircraft safety certification and the hiring of air traffic controllers and technical engineers. It would also authorize $19.35 billion for infrastructure improvements, and more than double annual funding for a program that subsidizes flights to small rural airports.


• BAIL REFORM: Illinois ended cash bail, here’s how it’s playing out. More than six months into implementation of the law that eliminated cash bail and reformed the state’s pretrial justice systems, newly released data from the Cook County courts offers the first glimpse of detention outcomes, though experts caution that it’s still early to compare rates of court appearances and reoffending before and after the law. The Pretrial Fairness Act has already ushered in significant change for county jails, with reductions in population across the state and in Cook County. Its implementation has also come with some growing pains. Appeals of judicial detention decisions have soared, straining the state’s high courts. The law, which seeks to give all defendants a robust defense in the pretrial stage, has also underscored the dearth of resources for public defense in some mostly rural parts of the state.


• EDUCATION: Maryland becomes third state to ban legacy preference in admissions. A bill designed to eliminate the use of legacy preferences at Maryland universities was signed by Gov. Wes Moore this week. Maryland becomes the third state to eliminate the practice, as the question of fairness in admissions undergoes increased scrutiny across the country. Colorado was the first state to ban legacy preference in 2021, and earlier this spring, Virginia became the second. Legislators in California, New York, Massachusetts, Minnesota and Connecticut are considering similar proposals. On the federal level, a bill has been introduced that would prevent colleges from being accredited if they considered legacy or donor connections in admissions.


• PASSENGER RAIL: Brightline founder eyes private rail expansion to Texas, Seattle. A new era of fast passenger rail is poised to sweep across the U.S., according to Wes Edens, the billionaire founder of Brightline—the first private train operator in the country in more than a century. After kicking off construction this week on Brightline’s latest venture, a $12 billion rail project spanning from Las Vegas to Southern California, Edens is already envisioning the next major hub. Edens says appropriate regions for expansion are areas with major population centers around 200 to 300 miles apart. “The Texas triangle of Dallas, Houston and San Antonio is among the promising routes, as are Atlanta-Charlotte, Portland-Seattle and Chicago-St. Louis,” Edens said in an interview with Bloomberg.


• FINANCE: Iowa bans government role in guaranteed income programs. Gov. Kim Reynolds has signed a bill into law that prohibits cities and counties from participating in or enforcing programs that make "payments to individuals under a guaranteed income program." It is the latest in a handful of states to do so. Republicans who backed the law's passage criticized guaranteed income programs as the wrong direction to take while addressing poverty, and expressed concern that they could become more widespread. The bill would halt central Iowa's UpLift pilot program, which provides 110 Iowans with $500 per month for two years. Payments under the program, which are unrestricted, are intended to assist Iowans in covering the costs of basic needs. One of the program’s funding partners said that UpLift's scheduled 24-month pilot period would continue under nongovernment funding.


• TRANSPORTATION: Missouri will end its Adopt-A-Highway program. The Missouri Department of Transportation will phase out its program that allows the public to adopt a portion of state-managed roads and highways for cleanup. The program, which began in 1987, was paused last year after the state learned that the family of a convicted murderer had successfully applied for an “Adopt-A-Highway” sign in his honor. In a presentation to the state highway and transportation commission last month on the decision to end the program, a MoDOT official said across the board for roughly “5,300 adopters” there was on average only a single trash pickup each year, when the agreements call for four. In addition, the program was underwater financially as it cost MoDOT $1.2 million to run a program that only saves the state $540,000 to pick up trash.


• ELECTIONS: Delaware governor files to enter race for mayor of Wilmington. Democratic Gov. John Carney officially added his name to the race for mayor in Wilmington on Monday, saying he sees the seat as a step up, not a step down. “Maybe a more challenging job than the one I currently have in the sense that you’re closer to ordinary folks every day and dealing with the problems that they deal with every day,” he said. Carney said he would focus on public safety and gun violence, as well as affordable housing and community development. He will face former state treasurer and current city treasurer Velda Jones-Potter in the Democratic primary. Both are looking to replace Democrat Mike Purzycki, who announced in October he will not run for a third term.


• CITIES: Louisiana Supreme Court rules for new city of St. George. The state’s high court cleared the way late last week for the formation of St. George, a city of nearly 100,000 people that joins the ranks of the state’s largest cities, falling between Lafayette and Lake Charles in population. It is the first city to be incorporated in Louisiana in nearly two decades. A majority of justices found that lower courts had erred in blocking the city’s creation over concerns of its financial viability. The city will consist of an area of East Baton Rouge Parish, which is a largely white and more affluent area, southeast of Baton Rouge. The ruling signaled victory for a campaign that had endured since 2012 and was built on frustrations about schools, crime, infrastructure and the resources devoted to that part of the parish.


• UTILITIES: Demand for electricity in Northwest projected to grow 30% in decade. Electricity demand in the Northwest is expected to grow about 5% more than estimated last year and triple the prediction three years ago, industry experts said in an annual report published Wednesday by an industry trade group. Large data centers, an increase in high-tech manufacturing and growing electrification in homes, buildings and transportation are key factors in the forecast. In 2022, the committee projected demand would grow about 1% each year to 2032. In its latest report, the committee projects demand in the Northwest will grow at least 3% per year until 2034.


• HEALTH CARE: How one safety-net hospital fell into dire financial straits—and what it would take to resuscitate it. By design, Denver Health and other safety-net hospitals run on margins that most facilities would blanche at, getting paid less to care for their communities’ most vulnerable people. It works, until it doesn’t. Safety-net hospitals consistently have narrow financial margins because they treat an above-average percentage of patients who are uninsured or covered by Medicaid, which pays less than the cost of care, said Beth Feldpush, senior vice president of policy and advocacy at the trade group America’s Essential Hospitals. That makes such hospitals vulnerable any time a shock hits the industry. No one has found a clear way out of the financial bind that the safety-net mission creates. Increasing Medicaid rates and other sources of government revenue would help, but the political and fiscal realities mean those hospitals more often have to focus on fending off cuts, Feldpush said.

Picture of the Week

Grizzly bears are coming back to Washington’s North Cascades. The National Park Service and the U.S. Fish and Wildlife Service announced late last week a decision to actively restore the animals in the region, where they lived for thousands of years. The last confirmed sighting of a grizzly bear in the area was in 1996. The plan is to move three to seven grizzly bears from the Rocky Mountains or British Columbia every summer for five to 10 years until reaching a population of 25 bears. Thursday’s decision follows a decadeslong debate over the best way to bring back the bears to the North Cascades. The most recent push, which the federal government started in 2022, drew more than 12,000 public comments, many with concerns over the bears’ effect on humans, livestock and other wildlife in the area. Grizzly bears are considered a threatened species in the lower 48 states under the federal Endangered Species Act. There are about 2,000 grizzly bears outside of Alaska. In the 19th century, there were an estimated 50,000 in the U.S. (Photo: Education Images/Universal Images Group via Getty Images)

Government in Numbers

$630 million

The amount yearly that one economist estimates Illinois could spend on weight loss drugs for state workers. Gov. J.B. Pritzker, who pushed to expand coverage of high-priced weight-loss drugs such as Wegovy, Mounjaro and Ozempic for the state government’s workforce, is seeking an estimated $210 million to fund the first full year of broadened coverage, starting July 1. Pritzker’s administration says access to the medication will yield important health benefits for those who take advantage of the benefit and would equitably give access to the medication across the state’s insurance plans. But one economist who has studied the cost impact of this new class of drugs told WBEZ the state’s yearly outlay could cost as much as three times the state’s estimate, depending on the number of people who access the program. The results of these boutique weight-loss drugs can be akin to bariatric surgery but at a prohibitive cost—in some cases, more than $16,000 a year.