January 28, 2021 Article

Biden Administration Week One: Early Signs of Aggressive Environmental Agenda

As the Biden administration wraps up its first full week in office, the change in environmental policy priorities is already clear. On day one, President Biden rejoined the Paris Climate Agreement and issued an executive order requiring a review of all major environment guidance, rules, and policies that went into effect during the last four years. On day two, EPA sent a letter to DOJ asking it to freeze all pending litigation relating to environmental regulations promulgated by the prior administration. While the outcome of these actions and the fine details of the Biden agenda remain to be seen, there can be little doubt that a sea change on environmental policies will confront the regulated community.

The changes will be felt through all parts of the executive branch and in all areas of environmental law—air, water, and contaminated sites.  Here are four notable ways regulated companies can expect to be impacted:

1.  Increased federal role in enforcement.

One of the biggest changes will likely take place simply through the renewed focus on traditional federal environmental enforcement activities (site investigations, EPA referrals, and filed cases). These activities declined precipitously during the past four years as budgets were cut, priorities were focused elsewhere, and EPA’s career staffing levels shrunk dramatically.

Within DOJ’s Environment & Natural Resources Division, resources were shifted away from enforcement and towards Trump priorities like exercising eminent domain to take property for the border wall.  On top of the decrease in resources, internal conflicts between career and political staff diminished morale, further diverted scarce resources, and substantially slowed enforcement activities. Cases took longer to file and even longer to resolve. That figures to change now. This won’t occur overnight, but it’s a safe bet that EPA and DOJ will be filling out their enforcement ranks so that they can implement new policy priorities. That means more investigations, more referrals, and more civil and criminal cases. 

2.  There will be an increased focus on environmental justice.

Concerns over environmental justice—how the harms associated with polluting activities disproportionately impact low income and minority communities—date back decades. Executive Order 12989 (Feb. 11, 1994). During the Obama administration, EPA and DOJ attorneys were required to take these considerations into account when making enforcement decisions over which cases to bring and how to fashion settlements. Those concerns became less prominent during the past four years.

President Biden and Vice President Harris have promised a sweeping environmental justice agenda that would take a “whole-of-government” approach to reinvigorate these priorities. With control over both houses in Congress, however slight, expect the administration to advocate for comprehensive federal environmental justice legislation. But even if such legislative efforts run into roadblocks, the Biden administration will lean heavily on the powers of its executive orders and agency guidance to quickly achieve its environmental justice objectives. That means no matter what, federal agencies like EPA and DOJ will be prioritizing environmental justice as they craft and implement enforcement priorities.  

3.  A fundamental shift in climate change policy will have widespread impacts. 

There is perhaps no issue on which the Biden and Trump administrations differ more sharply than climate change. Some of the changes will be obvious to see. In one of his first acts in office, for example, President Biden rejoined the Paris Climate Agreement. The administration has since identified scores of rules, policies and guidance that are now under review which could be essential to the implementation of President Biden’s climate change policy objectives. Rules and standards that impact fossil fuel use by the power and oil and gas sectors and fuel efficiency standards for automobiles have already been targeted for revision in its January 20 executive order. And on January 27, President Biden signed a package of additional executive orders designed to elevate climate change at every level of the federal government.

A less obvious, but equally significant change, will be the Biden administration’s emphasis on “scientific integrity” and how it accounts for health and economic impacts in setting new and revised emissions standards. Whereas the Trump administration attempted to lessen the impact of co-benefits on those standards, the Biden administration has strongly signaled a return to EPA’s traditional approach that relies heavily on scientific advisory committees. And to further its climate change policies, Biden already established a new White House Office of Domestic Climate policy and an Interagency Working Group whose objective will be to calculate the social costs of GHGs so that those costs can be taken into consideration when conducting cost-benefit analyses of regulatory actions. This “all government” approach to addressing climate change will mark the beginning of a new era. 

4.  Efforts will continue to address emerging contaminants like PFAS.

Concern over PFAS contaminants continues to make national headlines, as just this week, DuPont, Corteva and Chemours announced a $4 billion settlement resolving claims in multi-district PFAS litigation in Ohio. Expect the Biden administration to employ all the tools at its disposal to address PFAS. The administration will likely support a comprehensive PFAS bill which stalled in Congress after passing in the house in January 2020. If enacted into law, that bill—the PFAS Action Act (H.R. 535)—would require EPA to make hazardous substance determinations under CERCLA on all PFAS within five years and would limit the introduction of new PFAS chemicals into commerce. Because many Republicans believe the bill is too sweeping, the fate of the PFAS Action Act may rest on whether the Democratic Senate abolishes the filibuster.

But even without the new law, the Biden administration is likely to accelerate rulemakings begun by the Trump administration to address PFAS under the Safe Drinking Water Act, CERCLA, and the Clean Water Act. And, notably, Biden’s pick to be EPA Administrator, Michael Regan, was the head of North Carolina’s Department of Environmental Quality at the time that state was at the center of the national fight over PFAS. If confirmed, expect an Administrator Regan to aggressively address PFAS as he did at the state level. Because addressing PFAS will also further the new administration’s environmental justice concerns, look for EPA to make addressing PFAS a major focal point going forward.

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Although none of the above changes will take place immediately, companies would be well-advised to prepare now. Action items to keep in mind: 

  • Avoid being caught off guard by federal enforcement actions. Continue to review compliance data and related records and be prepared for site investigations. If your company is already involved in federal settlement negotiations, keep the lines of communications open with federal regulators about how the change in administration might affect those negotiations. 
  • Stay informed on rule or policy changes that could impact your industry. If your company has pending projects being completed under existing rules and regulations, be aware that the applicable requirements might change. If final permits have been issued, new regulations should not affect those permits.
  • Be prepared for a more aggressive emphasis on environmental justice.  Facilities that operate in or near vulnerable communities may face greater scrutiny. Expect increased community involvement on issues and agency actions that impact facilities in those communities. Take a proactive approach to maintain positive community relations.
  • Keep an eye out for opportunities to benefit from climate change goals. The Biden administration’s climate change agenda calls for significant investments in infrastructure, renewable energy, energy efficiency, and cleaner vehicles. Tax benefits and other programs may reward companies whose products and operations advance the administration’s climate change goals.