EPA Rolls Back Obama Methane Rules; I Coin a Phrase: “Regulatory Whiplash”

Last week, EPA finalized its rollback of Obama administration regulations governing methane emissions from the oil and gas industry.  The move is not exactly a surprise.  Regarding the purpose of the rollback, I stand by my take on the proposed regulations.  This regulation was promulgated for two purposes.  First, it provides generic red meat to those who think government regulation is inherently a bad thing.  Second, it benefits small producers much more than large producers – and small producers are much more part of Trump’s audience.

The interesting part of the coverage was the extent to which the regulated community is getting tired of ever-changing regulatory interpretations, particularly in light of how a Biden administration would be likely to deal with the various Trump rollbacks.  One particular facet of issue caught my eye.  Law 360 (subscription required) quotes Corinne Snow of Vinson & Elkins as saying that:

We know from the beginning of this administration that it takes time and agency resources if you want to change a rule that hasn’t been blocked by a court,” she said. “A new administration can’t come in on day one, and EPA can’t on its own, just decide to get rid of this final rule or go back to the Obama-era rule. It takes the same process to change a regulation as to make a regulation in the first place.

Of course, she’s right as a general matter.  But I do wonder whether this general proposition holds true when the regulations that the new administration wants to promulgate have already been promulgated once.  I’m sure that the Biden administration will be more careful than the Trump administration in its regulatory pronouncements, but it’s not as though they’ll be writing on a clean slate.  Putting aside regulations to be written to implement a Biden administration’s expected legislative agenda, how hard would it really for a Biden EPA to say that it likes the Obama regulations more than the Trump regulations, particularly when they have all the science on their side?

I think that companies worried about regulatory uncertainty should stock up on ibuprofen now.  If Biden wins, there are going to be some serious cases of regulatory whiplash.