Environmental Law outlook under a Biden Administration

[co-author: Juliya Grigoryan]

The Biden administration, now set to take office in January 2021, will face unprecedented challenges. These challenges, including the coronavirus pandemic, President Trump’s legal challenges to the election results, the call to address racial inequality, and the need to unify a divided nation after a contentious election, will all compete for the immediate attention of President-elect Biden. The Biden team will have to weather these perilous times while simultaneously implementing its environmental agenda. What then does the future hold for environmental law under a Biden administration? We offer our views regarding a Biden administration below in the form of responses to questions we expect to be the most common in the aftermath of the election results.

In sum, we anticipate the Biden administration will seek to undo many of the deregulatory actions of the Trump administration. We can further anticipate the Biden administration will seek to strengthen environmental protections by adopting new standards, revising existing standards, and increasing enforcement. The central feature of Biden’s environmental platform is its “Clean Energy Future” agenda, with a target of a carbon-free power sector by 2035 and net-zero carbon emissions by 2050. To achieve this agenda, the Biden administration will rejoin the Paris Climate accord, and pursue regulatory measures to combat climate change with a focus on reducing air emissions, advancing alternative fuels and electric vehicles, pursuing clean energy initiatives such as renewables and carbon capture methodologies, reducing fossil fuel development, and prioritizing environmental justice concerns.

In light of the tight margins in the election that reflect deep divisions in the country, the Biden administration may adjust its agenda to examine where it can find bipartisan solutions. Combating climate change and confronting environmental justice issues would remain paramount, but the new administration may also expand its agenda to foster job creation and new economic opportunities for rural communities.

Can we expect greater environmental regulation under a Biden administration, and how will Biden undo various deregulatory initiatives under the Trump administration?

The Biden administration will seek to reverse the deregulatory agenda of the Trump administration across multiple fronts, but as noted above, it is anticipated that these reversals may be modulated in light of the close election. How quickly the new administration can do so depends on the action it seeks to undo. Most immediately, President-elect Biden can revoke Trump’s Executive Orders with little more than a stroke of the pen. For final rules and regulations, the Biden administration will have to engage in a much longer and complicated process. Unless democrats do ultimately take control of the Senate, the Biden administration will not be able to rely on the Congressional Review Act (CRA) as a tool for policy change.

Revocation of Trump Executive Orders

First, we can expect the Biden administration to act quickly to revoke the various Executive Orders (EOs) issued by President Trump. The Biden administration is expected to revoke the following EOs, among others:

• E.O. 13771: “Reducing Regulation and Controlling Regulatory Costs,” which established a goal that for “every one new regulation issued, at least two prior regulations be identified for elimination” (January 30, 2017);

• E.O. 13778: which directed the EPA (Environmental Protection Agency) to rescind the previous administration’s definition of what constitutes “waters of the U.S.” under the Clean Water Act (February 28. 2017);

• E.O. 13783: entitled “Promoting Energy Independence & Economic Growth,” which directed the EPA to “suspend, revise, or rescind” the Clean Power Plan (CPP) and disbanded the Interagency Working Group (IWG) on Social Cost of Greenhouse Gases (Mar. 28. 2017);

• E.O. 13792: Review of National Monuments, which directed a review of all national monument designations since the Clinton administration, resulting in the reduction of the Bears Ears National Monument and Grand Staircase Escalante National Monument, among others (Apr. 26, 2017);

• E.O. 13795: entitled “America First Off-shore Energy Strategy,” which outlined a strategy to increase domestic oil production on federal land and streamline permitting processes. In League of Conservation Voters v. Trump, a federal court in Alaska vacated the portions of the EO that withdrew the US Outer Continental Shelf from leasing protections (Apr. 28, 2017);

• E.O. 13807: entitled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” which instructed the Council of Environmental Quality to identify actions that would reduce the average time for an environmental review and reduce the length of Environmental Impact Statements (Aug. 15, 2019); and

• E.O. 13868: entitled “Promoting Energy Infrastructure and Economic Growth,” which aims to speed up energy infrastructure permitting processes (Apr. 10, 2019).

Repeal or Abandonment of Trump Rulemakings

Second, the Biden administration will seek to reverse several Trump rulemakings. To repeal a regulation, an agency must give a reasoned explanation and provide public notice and comment. President-elect Biden will also likely engage in new rulemakings, which is a longer process that requires a rationale for the change in policy, public notice and comment, and responses to comments before finalization of the rule. If the rule is significant, it must be reviewed by the Office of Information and Regulatory Affairs in the Office of Management and Budget and a cost-benefit analysis may be necessary. The following are some examples of potential regulatory changes:

• Regulations on the scope of the Migratory Bird Treaty Act (MBTA): The Trump administration attempted to remove the prohibition against “incidental take” (i.e., accidental harm or killing). However, a district court struck down this interpretation. Nat. Res. Def. Council, Inc. v. U.S. Dep’t of Interior, No. 18-CV-04596-VEC, (S.D.N.Y.) (Aug. 11, 2020). The Biden administration will likely abandon the pending appeal and return to the prior, long-standing interpretation that the MBTA prohibits incidental take. However, the administration may also seek to provide protection for various industries impacted by a return to strict liability under the MBTA by implementing a permit program for those companies that have adopted best practices to minimize harm to migratory birds.

• Regulation of methane emissions: EPA finalized a rule in August 2020 that rolled back Obama-era new source performance standards for methane emissions for oil and gas facilities. The D.C. Circuit issued an administrative stay that temporarily prevents the rule from going into effect. Envt’l. Def. Fund, et al. v. Andrew Wheeler, et al., No. 20-1359 (U.S. App. D.C. 2020). The Biden administration would likely repeal the Trump regulation and attempt to extract itself from the pending litigation. Before taking any new regulatory action, the new team will likely evaluate recent state regulatory efforts and federal tools for regulating methane and explore methods for incentivizing new technologies and fostering best practices to minimize emissions.

• Chemical disaster prevention: The Obama administration adopted this Clean Air Act Section 122(r) regulation in January of 2017, to implement worker safety and emergency preparedness requirements in the aftermath of various chemical plant explosions and fires. In November of 2019, EPA published a final rule which eliminated many of the provisions in the Obama regulation. Since this rule is outside the scope of a CRA expedited repeal (as discussed below), the Biden administration may opt to expand the 2019 rule through a rule amendment to reinsert the omitted provisions. Alternatively, the new administration could repeal the new rule and reinstate the prior regulatory measures.

• Corporate Average Fuel Economy (CAFÉ): The administration will seek to repeal the Trump administration’s repeal of the Obama-era CAFÉ standards and reimpose the 2012 fuel efficiency regulation that required automakers' fleets to average 54 miles per gallon by 2025. The administration will also seek to foster technological innovation, as well as alternative fuels and electric vehicles, to support new economic development opportunities.

• Revisit Endangered Species Act (ESA) regulations: The Trump administration revised these regulations to remove the prohibition against considering the economic effects of a listing decision, end the practice of applying endangered species-level protections to threatened species, and require a close causal link between impacts to species and the proposed project. The administration also adopted a new regulation on critical habitat. The Biden administration will evaluate which parts of the Trump regulation to retain and which parts to reverse.

• Revisiting Waters of the United States (WOTUS) rule: Under the Clean Water Act, there is federal jurisdiction over “waters of the U.S.” The Obama administration had issued a revision to WOTUS in 2015, which was the subject of extensive litigation. The Trump administration issued a repeal and revision of the Obama era rule, which has also drawn litigation for removing groundwater, ephemeral and intermittent streams, and certain agricultural operations from federal oversight. See previous publication on this topic. The Biden administration will likely repeal the Trump regulation, but may modify the 2015 approach to stave off litigation exposure or seek a bipartisan solution in Congress.

Potential Use of the CRA

Given the unresolved status of the Senate races, it remains unclear whether the Biden administration will have the CRA as a tool to nullify recent regulations from the Trump era. In simplest terms, the CRA allows Congress 60 legislative days from when a regulation is submitted to Congress to issue a joint resolution nullifying the regulation. If Congress takes this action, the executive branch is barred from adopting a regulation that is substantially similar. The CRA requires support from both houses of Congress. It remains to be seen whether President would deploy this tool assuming the Democrats gain control of the Senate, which would undoubtedly be viewed as an aggressive move. Trump era regulations that could be in jeopardy, depending on how many legislative days occur between now and the end of the 116th Congress, include the following:

• NEPA Regulatory Reform: The Council on Environmental Quality (CEQ) amended the National Environmental Policy Act (NEPA) regulations to narrow the scope of environmental review for impacts from federally-funded or authorized projects (finalized July, 2020).

• Regulation of oil and gas emissions for new, modified, and reconstructed sources: EPA finalized its rescission and revision of Obama-era Clean Air Act regulations that previously restricted the emissions of greenhouse gases and volatile organic compounds (VOCs) and established methane standards from oil and gas operations (finalized August, 2020)

• Effluent Limitations for Steam Electric Power Generating Point Source Category: The EPA removed the zero-discharge limitations for these power plants and implemented less stringent compliance technologies (finalized August, 2020).

• Clean Water Act Section 401 Water Quality Certification: The EPA issued this rule, which provides for limitations on state and tribal authority to certify compliance with state water quality standards for projects involving federal waters. This rule has been strongly opposed by several states (finalized July, 2020).

• Section 112 Clean Air Act Major Sources Reclassification: The Biden administration will examine the newly-promulgated regulation that removed the “once in, always in” policy. The new regulation permits “major” sources to be reclassified as “area” sources if they fall below certain hazardous air pollution thresholds, allowing them to avoid the more stringent Maximum Available Control Technology (MACT) standard, and instead, to apply the Generally Available Control Technology (GACT) standard. President-elect Biden will need to grapple with Trump's October 2020 new rule on the Clean Air Act source reclassification and determine what tools are available, including the CRA, for modifying this new rule to achieve his climate change goals (finalized October 2020).

• Pending regulations: If finalized by the end of the year, these regulations could be subject to the CRA:
  • Cost-benefit analysis in Clean Air Act: changes the cost-benefit analysis used in Clean Air Act regulations to limit consideration of co-benefits when justifying regulations; and
  • Strengthening Transparency in Regulatory Science: permits the use of independently verified data in certain instances even if the data is not fully publicly available.

What environmental reviews will be required on my permits? Is streamlining a thing of the past?

The Biden administration has a dual agenda of environmental protection with economic development, through the stimulation of new energy economies and infrastructure projects and more stringent regulatory oversight. The administration may adjust its platform given the election’s tight margins to try and build coalitions where possible. As a result, many of the Trump administration’s streamlining initiatives that were targeted for reversal may survive in the interest of building good will with certain sectors of the American economy.

One area where the Biden administration will grapple with this dynamic is regarding the newly revised NEPA regulations. In short, the Trump administration’s final rule contains significant procedural and substantive changes that include reducing the scope of when NEPA applies, removing consideration of cumulative impacts, increasing the use of categorical exclusions, and limiting the breadth of reasonable alternatives. The final regulations have been in effect since September 14, 2020, but their longevity is in question. While some in the regulated industry touted these NEPA revisions as a welcomed change, environmental groups are challenging them in court. The Biden administration will likely seek to amend the new regulation to ensure the consideration of climate change impacts, but will also be wary of removing sound streamlining measures that will enable its infrastructure projects to proceed in a timely fashion. Please see our published articles for additional details: CEQ's NEPA regulatory overhaul: highlights and predictions and Final NEPA rule and its consequences for detailed discussion on the NEPA rule changes.

Will enforcement increase under the Biden administration?

Enforcement numbers (cases, inspections, referrals) are at a historic low under the Trump Administration. The Biden administration will focus on exercising its enforcement authority, particularly in its battle against climate change and protection of environmental justice communities. In this regard, there will be an increase in enforcement under the various environmental statutes with a focus on Clean Air Act cases, safe drinking water, and cleanup of environmental contamination that adversely impacts marginalized and disadvantaged communities.

Part of this heightened focus includes the establishment of an “Environmental and Climate Justice Division" within the Justice Department to prosecute environmental violations. The Biden administration will also likely reverse President Trump’s October 2019 E.O. 13892, entitled “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,” which granted regulated entities greater opportunity to provide input on the alleged violation prior to enforcement and prohibited sole reliance on guidance documents when bringing enforcement actions.

The Biden administration may also revisit the March 2020, the Department of Justice (DOJ) memorandum, which concluded that the supplemental environmental projects (SEPs) policy is unlawful on the basis that the use of SEPs violates the Miscellaneous Receipts Act. Given the benefits of SEPs to disadvantaged communities, there may be a reversal of this DOJ memorandum.

Regarding climate change, the Biden administration has indicated that it will not revisit the Obama-era cap-and-trade system and will instead impose penalties on companies that fail to meet specific technology control and emissions requirements. The Biden administration will be focused on enforcement of methane emissions from the oil and gas industry as well as carbon emissions from power plants, among other industries. The Biden administration has also indicated that it will increase coal companies' payments to the black lung benefits program and require public companies to disclose climate-related financial risks and the greenhouse gas emissions in their operations and supply chains.

Will the Biden administration mean the end of the fossil fuel energy and a new era in renewables and clean energy?

Central to Biden’s environmental platform is his “Clean Energy Future” agenda. With a target of a carbon-free power sector by 2035 and net-zero carbon emissions by 2050, it is likely that the fossil fuel industry will be impacted. The Biden administration promises to pursue an aggressive policy to meet its clean energy targets and to combat the impacts of climate change.

President-elect Biden has promised, for example, to ban any new oil and gas development on public lands. Under the Trump administration, there has been a focus on expanding fossil fuel development, including in the Alaska National Wildlife Refuge (ANWR), the National Petroleum Reserve in Alaska (NPR-A), and on public lands in the western United States. The Biden administration will likely reverse these decisions, cease expansion of conventional development on public lands, and explore with Congress the mandatory leasing scheduled for ANWR. The new administration is also expected to reinstate the coal moratorium on public lands and require additional environmental reviews for pipeline projects, such as Dakota Access. For additional details on Biden’s agenda involving public lands, click here. Yet the administration may also tread carefully where small, rural communities are adversely impacted from these policy shifts and look for solutions to build new economies in these regions.

The Biden administration will likely adopt a version of the Obama-era Clean Power Plan (CPP), revoke the Trump administration’s E.O. 13783, and repeal the Affordable Clean Energy rule, in order to closely regulate coal and gas-fired power plants. The new administration is expected to pursue a new rulemaking, including an assessment of its authority to regulate “beyond the fence line.” Relatedly, the Biden administration will assess the defensibility of the Obama-era "GHG New Source Performance Standards for Power Plants,” which regulates carbon pollution from new or refurbished power plants. The Trump administration has not adopted a final regulation, leaving the 2015 rule under legal challenge.

The Biden administration will re-enter the Paris Climate Agreement, resume payments to the Green Climate Fund, and ratify the Kigali Amendment to the Montreal Protocol. The administration has also announced plans to convene a climate world summit in the first 100 days.

Renewable energy will be a top priority, both onshore and offshore. The Biden administration has set targets for installing 500 million solar panels (including 8 million solar roofs and community solar energy systems) and 60,000 wind turbines through community-based and utility-scale systems. In addition, the administration will aggressively advance the queue of pending offshore wind project applications in the Atlantic and will focus on job creation initiatives in the U.S. to build these projects.

Another major initiative is support for electric vehicles. The administration made a commitment to convert 500,000 school buses to zero emissions, build 500,000 charging stations for electric vehicles, exercise its purchasing power to convert 3 million vehicles in the federal fleet to clean cars (incentivizing auto industry to produce more energy-efficient vehicles), and will incentivize low-emission vehicle technologies. These initiatives, if successful, will reduce the market demand for fossil fuels.

The Biden administration will also seek to engage in land conservation measures nationally to achieve the “30 x 30” goal of protecting a third of the world’s landmass by 2030 to combat climate change through carbon sequestration. Areas proposed or under consideration for development under the Trump administration, such as the Minnesota Boundary Waters Canoe Area, the Pebble mine in Alaska, and New Mexico’s Chaco Canyon, will be reconsidered under the Biden administration.

What can you do to understand further how the Biden administration will impact environmental law?

We have additional resources available to share with you on various environmental topics here. We also welcome the opportunity to work closely with you to navigate how the newly elected Biden administration may impact your business and changes that may come in environmental regulation and enforcement.

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