What to Expect from the Biden Administration: Key Environmental and Natural Resource Issues to Watch
Energy, Environment & Natural Resources 11/17/20 Cynthia A. Faur, George Marek, Pilar M. Thomas
Joe Biden is projected to become the 46th President of the United States. When he takes office on January 20, 2021, we expect a significant shift in how the federal government addresses environmental policy, regulation, and compliance. Below are the key issues that the Quarles & Brady Energy, Environment & Natural Resources Practice Group is tracking.
One of the most significant changes we expect from the Biden administration is a renewed focus on addressing our changing climate.
Climate change is one of four top priorities of the new administration. President-elect Biden has indicated that on his first day in office, he will issue an Executive Order to rejoin the Paris Agreement on climate change, and he is proposing an ambitious agenda to address greenhouse gas (GHG) emissions and remake the economy through investment in “green” infrastructure, buildings, transportation, and renewable power. He is also proposing to create jobs in “climate smart agriculture,” resilience, and conservation.
President-elect Biden has signaled he intends to take an “all government” approach to addressing climate change and to broaden the focus on this issue beyond the United States Environmental Protection Agency (EPA) to other agencies, like the Departments of Transportation, Agriculture, Treasury, and State. This broader focus reflects the new administration’s belief that addressing the challenges of climate change is vital and consistent with growing the economy through investment in “greener” technologies and creating jobs.
While it is possible that the White House and Congress can work together to pass an infrastructure bill that accomplishes some of the President-elect’s climate goals, legislation directly limiting GHG emissions does not appear likely at this time. Therefore, the majority of changes will be made through executive order and regulation. We expect the new administration will revise EPA GHG regulations, like the Affordable Clean Energy (ACE) Rule, which regulates GHG emissions from power plants, and the Safer Affordable Fuel Efficient (SAFE) Vehicles Rule, which updated the GHG emissions standards for passenger cars and light trucks and establish new standards for model years 2021 through 2026. We will likely see other rulemakings targeting GHG emissions as well.
The Biden administration also intends to emphasize environmental justice and the impact of pollution on low income, minority, vulnerable, and indigenous communities.
Federal efforts on environmental justice, which is generally defined as the fair treatment and meaningful involvement of all people regardless of race, ethnicity, and income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies, derive from Executive Order 12898 on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. President-elect Biden has committed to revise this executive order for the 21st century and to overhaul EPA’s External Civil Rights Compliance Office.
A renewed emphasis on environmental justice will likely result in increased federal scrutiny of compliance and enforcement at facilities located in low income, minority, vulnerable, and indigenous communities; greater opportunities for and consideration of public comments in permitting and enforcement matters involving these facilities; and evaluations of such projects pursuant to the National Environmental Policy Act (NEPA). There may also be additional ambient air monitoring or drinking water monitoring in environmental justice communities and new requirements promoting transparency regarding environmental compliance at facilities located in environmental justice areas.
Regulatory and Policy Changes
Over the past four years, the Trump administration has rolled back over 125 environmental regulations and policies. The majority of these actions have been challenged in court, and many of these challenges are still pending. In addition to final regulations that have been published in the Federal Register and are effective, EPA has several proposals that are currently pending final approval at the White House. These pending regulations include final rules that limit the types of scientific studies that can be considered by EPA in rulemakings and that change the manner in which EPA determines the costs and benefits of environmental regulations. Also pending is a final rule retaining of the National Ambient Air Quality Standards (NAAQS) for fine particulate matter. The Trump administration will likely work to issue these final rules before January 20.
Many of the deregulatory actions taken by the Trump administration, particularly in the Clean Air permitting area, involved policy changes. Where these policy changes were not incorporated in final regulations, they can be addressed by the Biden administration by simply repealing the revised policy.
Repeal and revision of regulations, however, cannot be as easily addressed. Given the amount of time it takes to develop and issue rules, the Biden administration will likely prioritize certain Trump era regulations to revise. We expect the top of the list to include the Navigable Waters Protection Rule, which revised the definition of Waters of the United States (WOTUS), and the comprehensive changes to the NEPA implementing regulations. The administration will also likely target the Trump-era regulations that have been challenged in the courts.
In addition to the revision of existing regulations, the Biden administration will also pursue new rulemakings. In particular, the Biden administration will likely propose rules regulating per- and polyfluoroalkyl substances (PFAS). As a candidate, President-elect Biden stated an intention to designate PFAS as a hazardous substance under CERCLA and to set standard for PFAS in the Safe Drinking Water Act. Regulations regarding the remediation of PFAS contamination and air emissions of PFAS are also possible.
We fully expect the oil and gas and mining industries to be in the crosshairs, as the Biden administration has vowed to ban new hydraulic fracking on public lands; restrict oil and gas drilling on public lands and waters; impose new federal mileage standards for vehicles; block pipelines that transport fossil fuels across the country; and mobilize other nations to make deeper cuts in their own carbon emissions. There have been public statements from President-elect Biden expressing his intentions to block permits for the Keystone XL pipeline and the proposed Pebble Mine near Alaska’s Bristol Bay, as well as promises to protect vast swaths of the landscape that President Trump has opened up to mining and logging. This will likely include restoration of the original boundaries of national monuments reduced under President Trump, including Utah’s Grand Staircase-Escalante and Bears Ears.
Additionally, during his campaign, President-elect Biden also repeatedly called for increased workplace safety inspections to combat the spread of COVID-19. Under that premise, agencies like the Mine Safety and Health Administration (MSHA) will likely pursue COVID-19 requirements by forcing changes in training or ventilation plans. We expect the Biden administration to embrace regulatory action and compliance investigations, as well as emphasize miner protections, increasing the number of special investigations into miner complaints and potential agent liability.
While permitting relief is unlikely under the Biden administration, it is possible some domestic mining could garner support for the development of green energy. Under the Biden administration's Climate Change priority, there have been reports that President-elect Biden supports domestic supply chains for lithium, copper, rare earths, nickel, and other raw materials currently imported from China and other countries. Strategic minerals are needed to make solar panels and electric car batteries and, as a result, such projects may get a different reception than they did during the Obama administration as the United States is forced to rethink its sourcing strategy.
In the Midwest, we anticipate more federal support for the remediation and restoration of the Great Lakes basin. The Biden administration is likely to strongly support the Great Lakes Restoration Initiative (GLRI), providing additional funding for, and an expansion of, projects under the GLRI. The GLRI and the Great Lakes Legacy Act (GLLA) have been used by EPA to support efforts to protect and restore the Great Lakes, including investigation, remedial design and cleanup efforts to address toxic substances in designated Areas of Concern (AOCs), as well as efforts to fight invasive species and address the protection and restoration of native habitat and native species.
Indian Country Impacts
For Indian Tribes, the Biden Administration is expected to resuscitate government-to-government consultation with Indian tribes on matters of significant impact to tribal lands, natural resources, and environmental issues. This will likely start with vigorous outreach to Tribes, through the White House Tribal Nations Conference and agency leadership. In addition, several environmental regulations—including WOTUS and the issuance of Nationwide Permits under the Clean Water Act, the ACE Rule, NAAQS, and NEPA—implicate important tribal interests. As the new administration revisits these regulations (and related executive orders and guidance), we expect that robust tribal consultation will be included. Furthermore, major infrastructure projects that may have a significant impact on tribal cultural and historic resources off of reservation lands should be prepared for increased scrutiny and consideration of tribal interests.
Other key focus areas of the Biden administration, such as climate change, infrastructure investment, and economic recovery from COVID-19, will also contain a strong Indian Country element. Indian Tribes will likely have a seat at the table with state and local governments in receiving funding, technical support, and attention to help Tribal governments support their communities.
Civil and Criminal Enforcement
Under the Trump administration, enforcement was down across the board, and criminal enforcement, in particular, had fallen to a 30-year low. Under the Biden administration, there will likely be a significant uptick in federal inspections and enforcement across all media with a particular focus on environmental compliance in low-income and minority communities, and on industries with significant GHG emissions, including the power sector. Additionally, we expect that the Department of Justice will once again allow the use of Supplement Environmental Projects (SEPS) as a component of an environmental settlement. The Trump administration has disallowed the use of this popular settlement tool in matters resolved in federal courts.
How to Prepare for the Changes
While there will be a new sheriff in town after January 20, 2021, many of the changes expected under the Biden administration will not be immediate. Companies, however, should prepare.
- Where pending projects are proceeding in accordance with regulations and policies issued by the Trump administration, keep an eye on the status of the relevant regulations and policies. Where projects have been fully permitted, they can proceed in accordance with applicable permits. Where permits are pending or require revisions, new requirements could apply.
- Review your facilities’ compliance with environmental requirements, particularly if you operate facilities located in environmental justice communities or your facilities use, emit, or store materials defined as “hazardous” under environmental laws.
- Be aware of potential opportunities for growth and sustainability improvements. President-elect Biden’s plans call for significant investment in infrastructure, renewable energy, energy efficiency, cleaner vehicles, and greener agricultural practices. There may be a bipartisan path forward on some of these proposals, including public-private partnerships on infrastructure improvements and tax benefits or programs for companies whose products further the new administration’s climate goals.
- If your project or efforts implicate Tribal interests, anticipate that federal agencies will elevate their consideration of those interests. While not likely to substantially affect the timing of federal action, expect increased scrutiny on environmental justice, cultural and historic resource protection, and other aspects of the project that could negatively impact Tribal communities.
If you have any questions concerning how the changes to environmental requirements during the Biden administration may impact you, please do not hesitate to contact your Quarles & Brady attorney or: