United States: President Biden’s Environmental Agenda Comes into Focus

As expected, President Biden’s primary focus is on climate change and energy.  On his first day in office, he signed an executive order re-joining the Paris Climate Accord.  President Biden also signed executive orders revoking the Presidential permit for the Keystone XL Pipeline, requiring all federal agencies to take action to consider regulations that conflict with the goals of promoting a healthy environment and addressing climate change and pausing many environmental regulations promulgated by the Trump Administration, in particular late-term actions.  And, last week EPA asked the Department of Justice (DOJ) to pause all litigation regarding regulations issued under the Trump Administration.  Overall, the first few days of the Biden Administration have demonstrated a clear departure from the Trump Administration with respect to almost every aspect of environmental regulation.

Agency Appointments

After early rumors that California Air Resources Board Chairwoman Mary Nichols was Biden’s choice to head EPA, Biden announced last month that North Carolina’s top environmental regulator, Michael Reagan, will get the nod as Administrator.  Mr. Reagan has substantial experience both as a regulator and in the NGO community, working for the Environmental Defense Fund for several years.  His experience in EPA’s air quality program under the Clinton and Bush Administrations supports the Biden Administration’s commitment to implementing more comprehensive regulations to address climate change.  It also has been reported that EPA may benefit from his prior experience in North Carolina, where he helped rebuild an understaffed state agency and prioritized environmental justice initiatives.

President Biden’s early choices for other positions at EPA demonstrate a marked shift from business or industry backgrounds to regulatory and public policy experience, with a substantial focus on climate change, energy and air regulation.  For example, President Biden nominated Janet McCabe as the second-in-command at EPA.  Ms. McCabe helped develop the Clean Power Plan when she served as the acting assistant administrator in the Office of Air and Radiation under President Obama from 2013 to 2017 and principal deputy before then.

Some of the other key EPA positions that have been announced are:

• Dan Utech as Chief of Staff.  He has been involved in the environmental and energy sectors as part of the federal government for more than 20 years, including EPA, the National Oceanic and Atmospheric Administration and the US Forest Service.  He was the Deputy Assistant to the President for Energy and Climate Change under President Obama and was previously an advisor to Senator Hillary Rodham Clinton on climate and energy.
• Michal Freedhoff as the Principal Deputy Assistant Administrator of the Office of Chemical Safety and Pollution Prevention.  She was previously on the Senate Environment and Public Works Committee’s Democratic staff and assisted with the 2016 revisions to the Toxic Substances Control Act (TSCA).
• Radhika Fox as the Principal Deputy Assistant Administrator of the Office of Water.  She was previously the Chief Executive Officer of the US Water Alliance, a national non-profit organization, and has extensive experience developing policies, programs and advocacy campaigns on water issues including related to climate change, affordability and innovative finance, water infrastructure investment and equity.
• Philip Fine as the Principal Deputy Associate Administrator for Policy.  He previously worked for 15 years at the South Coast Air Quality Management District, one of California’s largest and most stringent air districts, where he oversaw all activities of the Division.
• Joseph Goffman as Principal Deputy Assistant Administrator of the Office of Air and Radiation.  He was the Associate Assistant Administrator for Climate and Senior Counsel in the Office of Air and Radiation for 8 years and has prior experience on the US Senate Committee on Environment and Public Works as the Democratic Chief Counsel and Majority Senior Counsel.

President Biden’s pick for Secretary of the Interior will also be involved in setting environmental and energy policy.  He picked New Mexico Representative Deb Haaland to lead the agency, the first Native American to be in charge of DOI.  Her service on the House’s Natural Resources Committee gives her direct insight into the management of federal lands under the prior Administration.

Other picks show Biden’s commitment to addressing climate change holistically, across the entire Administration.  Jennifer Granholm, his DOE nominee, has ties to the auto industry as the former Michigan governor and is a strong proponent of zero-emission vehicles.  President Biden created the first Office of Domestic Climate Policy and designated former EPA Administrator, Gina McCarthy, as its head.  He also selected long-time climate leader, John Kerry, to serve on the National Security Council as the nation’s climate czar.

Finally, in keeping with Biden’s stated commitment to science as the underpinning of all environmental and climate policies and regulations, he elevated the Director of the Office of Science and Technology to a cabinet level position and nominated Eric Lardner, a geneticist and mathematician who was involved in mapping the human genome, for the role.  On January 27, 2021, President Biden followed up on this commitment issuing a Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking, which pledges to policymaking based on science, undistorted by political considerations and establishing the President’s Council of Advisors on Science and Technology (PCAST).

Early Executive Actions

As expected, in addition to rejoining the Paris Climate Accord, the Biden Administration announced that it would revisit and roll back many of the Trump Administration’s environmental regulations and policies.  The Biden Administration’s efforts to assess and revise environmental regulations and policies are aimed at both systemic assessment of all regulations, as well as a focused review of specific regulatory actions and programs.

Comprehensive Review of Environmental and Climate Regulations

First, President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis creates the mechanism for the Biden Administration’s review of all past actions and sets the tone for the path forward.  It establishes a number of clear goals as the policy of the Administration:

to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.

The EO requires all agencies to conduct an immediate review of all regulations, orders, guidance and policies enacted over the past four years to assess whether they are inconsistent with or an obstacle to the stated goals.  Further, the EO calls for the relevant agencies to consider rules that would suspend, revise or rescind agency actions in four key rulemakings or areas, largely targeting climate change:

1. revisions to the methane reduction regulations for the oil and gas industry;
2. the rules revising and reducing certain fuel economy standards for vehicles;
3. energy efficiency standards for consumer products and appliances; and
4. hazardous emission regulations for coal- and oil-fired utilities.

The EO also requires DOI to restore several national monuments and places a temporary moratorium on all activities relating to the August 17, 2020 Record of Decision leasing land for development in the Arctic National Wildlife Refuge.

Second, the Biden Administration’s EO, Regulatory Freeze Pending Review, targets late-term regulations that were sent for publication and had not been published in the Federal Register, as well as rules that had been published, but have not gone into effect.  It empowers the relevant agencies to consider revoking or pausing those rules.

Under the auspices of these EOs the Biden Administration provided further guidance on the specific rules that it is targeting for re-evaluation in a List of Agency Actions for Review, in addition to those specified in the Protecting Public Health and the Environment EO.  The list cuts across multiple agencies and addresses all environmental media, including air, water and toxics.  Some of the key rules identified for review are:

• General Procedures and Processes –
  • Council on Environmental Quality’s comprehensive revisions to procedures under the National Environmental Policy Act (NEPA), 85 Fed. Reg. 43304 (July 16, 2020), which in particular  redefined “effects” and rejected the requirement to consider cumulative impacts, limiting analysis of climate change impacts under NEPA
  • DOJ’s rule prohibiting settlement payments to non-governmental third parties, 84 Fed. Reg. 81409 (December 16, 2020)
  • EPA’s rule regarding publicly available data, Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (January 6, 2021)
  • Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51650 (August 21, 2020)
• Clean Air Act (CAA)/Climate Change –
  • Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32520 (July 8, 2019)
  • Pollutant-Specific Significant Contribution Finding for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, and Process for Determining Significance of Other New Source Performance Standards Source Categories, 86 Fed. Reg. 2542 (January 13, 2021)
  • Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced After July 23, 1984, 86 Fed. Reg. 5013 (January 19, 2021)
  • Control of Air Pollution From Airplanes and Airplane Engines: GHG Emission Standards and Test Procedures, 86 Fed. Reg. 2136 (January 11, 2021)
  • Review of the Ozone National Ambient Air Quality Standards, 85 Fed. Reg. 87256 (December 31, 2020)
  • Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” 85 Fed. Reg. 84130 (December 23, 2020)
  • Review of the National Ambient Air Quality Standards for Particulate Matter,” 85 Fed. Reg. 82684 (December 18, 2020)
  • Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act,” 85 Fed. Reg. 73854 (November 19, 2020)
  • Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration, 85 Fed. Reg. 57398 (September 15, 2020) and Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review,” 85 Fed. Reg. 57018 (September 14, 2020) National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review,” 85 Fed. Reg. 31286 (May 22, 2020)
• Clean Water Act (CWA) /Safe Drinking Water Act (SDWA)
  • The rule issued by EPA and the Army Corps of Engineers revising the jurisdictional definition of “Waters of the United States” under the Clean Water Act, 85 Fed. Reg. 22250 (April 21, 2020)
  • Revisions to the Lead and Copper Rule, 86 Fed. Reg. 4198 (January 15, 2021)
  • Drinking Water: Final Action on Perchlorate, 85 Fed. Reg. 42990 (July 21, 2020)
  • Clean Water Act Section 401 Certification Rule, 85 Fed. Reg. 42210 (July 13, 2020)
• Resource Conservation Recovery Act (RCRA)/Solid Waste Disposal Act (SWDA)
  • Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; A Holistic Approach to Closure Part A: Deadline To Initiate Closure,” 85 Fed. Reg. 53516 (August 28, 2020)
  • Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Amendments to the National Minimum Criteria (Phase One, Part One),” 83 Fed. Reg. 36435 (July 30, 2018)
• TSCA
  • The foundational procedures established for conducting risk evaluations to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, 82 Fed. Reg. 33726 (July 20, 2017)
  • Two rules relating to Methylene Chloride, 85 Fed. Reg. 37942 (June 24, 2020), 84 Fed. Reg. 11420 (March 27, 2019)
  • The proposed rule, 84 Fed. Reg. 36728 (July 29, 2019), and final rules issued by EPA on January 6, 2021 for five persistent, bioaccummulative and toxic chemicals: 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP), 86 Fed. Reg. 866, decabromodiphenyl ether (decaBDE), 86 Fed. Reg. 880, hexachlorobutadiene (HCBD), 86 Fed. Reg. 922, pentachlorothiophenol (PCTP), 86 Fed. Reg. 911), and phenol, isopropylated phosphate (3:1) (PIP (3:1)), 86 Fed. Reg. 894

Climate Change

In addition to rejoining the Paris Climate Accords, the wholesale review of agency action through the lens of climate change, and targeted reconsideration and likely revision or repeal of specific regulations, the Biden Administration is turning the Executive Branch into a catalyst to address climate change at home and abroad, signing the Executive Order on Tackling the Climate Crisis at Home and Abroad, on January 27, 2021. While much of the Biden Administration’s climate change agenda may take time to implement through revised regulations, new legislation and litigation, President Biden took action in the area typically within his exclusive control — foreign policy and the Executive Branch.

With respect to foreign policy, the EO elevates climate change to a matter of national security, stating that that “climate considerations shall be an essential element of United States foreign policy and national security.  The United States will work with other countries and partners, both bilaterally and multilaterally, to put the world on a sustainable climate pathway.”  The EO flushes out additional actions that the U.S. will take on the international stage, including hosting a Leaders’ Climate Summit, reconvening the Major Economies Forum on Energy and Climate and committing to make addressing climate change a priority in the G7, the G20, and other international fora.  Critically, the Biden Administration also recommitted to the US engaging in the process of developing its nationally determined contribution under the Paris Agreement.

Domestically, the EO make official the Biden Administration’s position that there has to be a Government-wide approach to combat the climate crisis “that reduces climate pollution in every sector of the economy; increases resilience to the impacts of climate change; protects public health; conserves our lands, waters, and biodiversity; delivers environmental justice; and spurs well-paying union jobs and economic growth, especially through innovation, commercialization, and deployment of clean energy technologies and infrastructure.”   The EO creates the White House Office of Domestic Climate Policy and the National Climate Task Force.  Further, as highlighted in the news with snippets about the pledge to “Buy America”, the EO commits the full buying power of the Federal Government and management of federal facilities behind the efforts to support energy efficient and GHG emission reducing technologies, products and practices.  Given the breadth of Biden’s domestic agenda, we will address this EO in a targeted client alert on climate change, which we will publish soon.

Advancing Environmental Justice

The Biden Administration has publicly focused on environmental justice as a key component of its agenda.  While it does not focus on environmental issues specifically, President Biden’s Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government sets the foundation for EPA, DOI, DOE and other agencies to consider equity issues in environmental policymaking.  The EO establishes as policy that the Federal Government will “pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”  The focus is to consider equity for underserved communities, defined as “populations sharing a particular characteristic, as well as geographic communities, that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life.”  We expect that this EO will be the backbone for EPA and other agencies to consider and implement more specific environmental justice and equity initiatives.

Protecting Workers from COVID-19

Building on its day one focus on the federal workforce with respect to mask-wearing and social distancing, on January 21, 2021, President Biden signed, Executive Order on Protecting Worker Health and Safety, emphasizing that the clear policy of the Administration generally and the Department of Labor specifically to protect workers from COVID-19.  The EO requires the Department of Labor to issue revised guidance on workplace safety within two weeks of the EO being issued.  We can anticipate that this may result in immediate changes to workplace practices to reduce COVID-19 impacts in certain industries where those impacts are perceived to be more serious.  The EO requires the Department to consider by March 15, 2021 whether any emergency rules with respect to masks are required.  Further, it requires a review of OSHAs enforcement activities and approach as well as the creation of a national program to focus on COVID-19 enforcement, signalling that there may be a substantial shift in enforcement of COVID-19 related violations.

Litigation and Enforcement

The day after Biden’s directive to immediately review and “take appropriate action” to address any regulations enacted by the prior Administration that are deemed harmful to public health or the environment or not supported by the best available science, EPA sent a letter to DOJ asking that DOJ stay (or, if not possible, then delay) all pending litigation related to regulations issued during the prior Administration.  Many of the rules that the Biden Administration is seeking to review are also being challenged in court, in particular the rules relating addressing climate change, such as the GHG emissions standards for cars and planes, fuel economy standards for vehicles, the regulations limiting methane emissions from oil and gas operations.  Similar to the express policy directive to OSHA with respect to COVID-19 enforcement, we expect that measures will be taken to increase enforcement of existing regulations, pending the substantial task the Biden Administration has before it to reconsider and revise the regulations on its review list.

Conclusion

We expect that the Biden Administration will proceed at a rapid pace over the next several months to reverse the prior Administration’s policies and move forward with its own agenda.  While some of the regulatory changes may wait until appointed officials are confirmed and key positions in EPA and the other agencies are filled, the Biden Administration may take additional actions through executive orders, like the climate change order on January 27, 2021.  Further, we expect that the Biden Administration will quickly turn to legislative initiatives once it has made sufficient headway with its priority economic and COVID-19 relief measures.