Sarah Okeson

How Biden and the Democratic Congress can start undoing Trumpism

Our nation's new Congress could use a once-obscure law to try to roll back some of the worst Trump actions after Joe Biden is sworn in.

The Congressional Review Act, signed in 1996 by President Bill Clinton, requires a simple majority of the House and Senate and the president's approval. Rules that were published after Aug. 10 could be axed by Congress.

"It's the quickest way to get rid of policies that will cause significan harms to the health of Americans and to the quality of our environment," said Richard Revesz. He directs the Institute for Policy Integrity at the New York University School of Law.

Just since Election Day 2020, Team Trump has completed at least 44 rules. They include:

  • Keeping the 2012 standards for microscopic soot that are linked to an estimated 45,000 deaths. The rule overrides advice from EPA scientists. Higher pollution appears to increase COVID-19 deaths.
  • Relaxing environmental rules for exporting liquefied natural gas. New Fortress Energy, a publicly traded company founded by billionaire Wes Edens, wants to build a terminal in Gibbstown, N.J. to ship liquefied natural gas to the Caribbean. Edens co-founded a New York City hedge fund that was part of a deal to loan the Trump Organization $130 million to help build the Trump International Hotel and Tower Chicago in 2005.

The Trump administration executed 10 federal prisoners in 2020, the most federal executions in a single year since 1896 when Grover Cleveland was president.

The act typically is used early in a president's first term when his party also controls both houses of Congress. President Barack Obama avoided using the Congressional Review Act, preferring to use regular rulemaking.

But before Trump took office, his aides, including Andrew Bremberg, Marc Short and Rick Dearborn, put together a spreadsheet of Obama rules they could undo. The 14 rules they succeeded in erasing early in 2017 included preventing coal companies from polluting streams by dumping waste in them and a rule meant to prevent people with mental health problems from buying guns.

Radical Republicans also used the rule in late 2017 and early 2018 to repeal two rules from the Consumer Financial Protection Bureau, the independent agency that Team Trump neutered.

Trump's EPA says toxic ash ponds can stay open into 2028

More than 50 of the oldest and dirtiest coal-fired electric power plants in America are asking Trump's EPA for more time to clean up their unsafe coal ash ponds. Some want eight more years.

David Tudor, the CEO and general manager of Associated Electric Cooperative Inc. in Springfield, Mo.,—the owner of two of the worst plants—told the EPA it was the company's "intent to complete these projects as expeditiously as possible while maintaining the reliability of the power system."

An estimated 523 leaking, unstable or dangerously placed coal ash ponds, including the Missouri cooperative's ponds at Thomas Hill and New Madrid, were scheduled to stop receiving toxic coal waste on Oct. 31. But the Trump EPA pushed that back to April 11, 2021, and told plants they could ask for extensions until 2023, 2024 and even 2028.

[caption id="attachment_21685" align="alignright" width="634"] 'Ashtracker' satellite view shows pollution sources at the New Madrid, Mo., power plant on the west bank of the Mississippi River. (Environmental Energy Project)[/caption]

Tudor met with Trump's first EPA administrator, Scott Pruitt, in April 2017 when Pruitt and other EPA officials visited the Thomas Hill plant near Clifton Hill, Mo. Sen. Roy Blunt (R-Mo.) and then Missouri Attorney General Josh Hawley, now also a Missouri senator, toured the plant with Pruitt.

Groundwater monitoring has found unsafe levels of sulfate, lithium, cobalt and arsenic at Thomas Hill. Unsafe levels of boron, cobalt, molybdenum, lithium and arsenic are in the groundwater at the New Madrid plant along the banks of the Mississippi River near New Madrid, Mo.

Democratic senators asked for an ethics investigation of Elizabeth "Tate" Bennett, then an EPA associate administrator, after the meeting at Thomas Hill. Bennett previously was a lobbyist for the National Rural Electric Cooperative Association. She currently works at Trump's White House as an agriculture adviser.

Andrew Wheeler, the current EPA administrator and former coal company lobbyist, used decisions in two federal court cases to rewrite federal regulations to benefit utilities. Power plants can now ask for more time to close unlined, leaking coal ash ponds if they claim they can't develop more storage space or if they have shut down a coal-fired boiler.

[caption id="attachment_21684" align="alignright" width="640"] Source: Duke University[/caption]

Coal-burning power plants produce about 100 million tons of coal ash a year. Arsenic, lead and mercury lace the ash. Companies mixed the ash with water and stored it in unlined pits called coal ash ponds, often near lakes or rivers.

A coal ash rule written under former President Barack Obama allowed power companies to put coal ash in unlined ponds indefinitely until their operators determined they were leaking. Federal judges threw that out in a 2018 decision, Utility Solid Waste Activities Group v. EPA.

The Trump EPA estimated that the enforcement delays would save utilities about $26.1 million a year. But the EPA didn't look at the cost of environmental damage or health risks associated with delays in cleaning up the coal ash ponds.

[action]

ACTION BOX/What You Can Do About It

Tell EPA Administrator Andrew Wheeler your thoughts on regulating coal ash. Call Wheeler at 202-564-4700 or write to him at EPA Headquarters / William Jefferson Clinton Building / 1200 Pennsylvania Ave., NW / Mail Code: 1101A / Washington, D.C. 20460.

[/action]

The Labadie Environmental Organization, based in Labadie, Mo., and eight other environmental organizations sued Wheeler and the EPA in federal court over the new rule.

Isabel Carey and Jason Schwartz at the Institute for Policy Integrity said the EPA's failure to consider those costs meant the rule violates the Administrative Procedure Act, the 1946 law signed by President Harry S Truman that governs how federal agencies write new rules.

About 41% of power plants with coal ash dumps is in the Midwest. Another third is in the southeast, and about 10% is in the Southwest.

Texas leads fight to end protections for Native American children

The top legal officers of Texas, Louisiana and Indiana—all Republicans—are trying to end legal protections that make it more difficult for child welfare agencies to tear apart Native American families.

Texas Attorney General Ken Paxton argued that the Indian Child Welfare Act violates the equal protection guarantee of the Fifth Amendment because children are put into one of two child welfare systems based on whether they are Native American.

"The ICWA unlawfully attempts to coerce state agencies and courts to carry out an unconstitutional and illegal federal policy of deciding custody based on race," Paxton said.

Congress set up this dual system in 1978 after decades of native American families being destroyed by child welfare agencies. Twenty-five percent to 35% of all Native American children had been separated from their families and placed in adoptive homes, foster care or institutions.

Native American children are still more likely to be removed from their families by state child welfare systems.

The act, signed by President Jimmy Carter, requires that state agencies use "active efforts" to try to prevent the breakup of Native American families, notify people of pending proceedings and their right to intervene and keep records and make them available for inspection.

When a Native American child is removed, preference in placing the child must be given to the child's extended family, then to the child's tribe and then finally to other Native American tribes.

Chad and Jennifer Brackeen, a Fort Worth couple who have adopted a Native American boy and are trying to adopt his half-sister, are also plaintiffs in the suit. Chad Brackeen said in a court hearing that he had concerns about the Native American relative who also wanted to adopt the baby girl, including her smaller house.

"I don't know what that looks like—if she needs space, if she [the child] needs privacy," he said. "I'm a little bit concerned with the limited financial resources possibly to care for this child, should an emergency come up."

In October 2018, federal judge Reed O'Connor ruled the act was unconstitutional, but that decision was reversed by a panel of three Fifth Circuit judges. Paxton asked for all the judges of the Fifth Circuit to hear the case; oral arguments were held in January. Even Team Trump, which has presided over losing track of the migrant parents of 545 children, supports the Indian Child Welfare Act, writing that Native American children were removed by "abusive practices" by state and private agencies.

Psychiatrist Joseph Westermeyer told Congress before the act was passed that Native Americans he treated who had been removed from their families often did reasonably well in early childhood. But as teenagers, they frequently tried to kill themselves, used drugs and ran away.

"It's been my own experience that the vast majority of social workers called to assist Indian families when there is a crisis or distress, do a very poor job," Westermeyer said. "They do not work to keep the family intact."

The act widely is considered a"gold standard" in child welfare policy and provides rights to Native American families that other families in our country don't have such as requiring expert witness testimony before a judge approves placing a child in foster care.

Even with the extra protections, Native American children are still more likely to be removed from their families by state child welfare systems.

Our nation's Children's Bureau founded more than a century ago under President William Howard Taft, spends about $9.8 billion a year to support and monitor child welfare agencies.

All that money hasn't done much to improve justice for children and families in the child welfare system, said law professor Vivek Sankaran.

More than 250,000 children were removed from their parents in fiscal 2019, many who may have never needed to be separated from their parents. Less than half of children are reunified with their parents, and judges are terminating parental rights at a higher rate.

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