Environmental Alert: Expectations for Environmental Regulation under the Biden Administration

Even before Joseph R. Biden was sworn in as the 46th president of the United States on January 20, 2021, there was widespread commentary on the steps he would take to restore environmental protections that the new administration felt had been compromised over the past four years. President Biden began implementing his environmental agenda on day one and hasn’t slowed down yet.

The executive orders signed by President Biden to date demonstrate a dramatic shift in policy and environmental regulation. This administration is intent on undoing much of what was done over the past four years; but can the clock be rewound, and how long will it take?

President Biden has ordered federal agencies and executive departments to review more than 100 rules and regulations relating to air, water, public lands, endangered species, and climate change that were weakened or rolled back by his predecessor. Also subject to review are all environmental policies that were put in place during the prior administration that do not further the President’s environmental goals. Fortunately for this administration, recent court decisions are also creating the opportunity for a review and revision of certain Trump era environmental regulations.

The administration can take direct steps to address environmental policy through executive orders, revised policy documents, and the Congressional Review Act, which allows for any regulation finalized within 60 legislative days of the end of a presidential term to be overturned with a congressional vote. However, implementing the Congressional Review Act would bar the administration from enacting a substantially similar rule.

Late last week, the Department of Justice rescinded nine Trump ear guidance memorandums related to environmental enforcement. The rescinded memos involve use of supplement environmental projects in civil settlements with private defendants and state and local governments, enforcement of the Clean Air Act and other enforcement priorities. No replacement guidance has been provided, but this action further shows the shift in enforcement policy that is expected with this administration.

Although swift action is being implemented where possible, in general, President Biden’s robust environmental agenda will not result in immediate change in regulatory compliance requirements or enforcement of environmental regulations. Full implementation of his environmental policy could take many years, but it is worth knowing what the regulated community can expect over the next four years.

Expectations:

• This administration is going to regulate through an increased federal presence. Over the past four years regulation was generally left up to the states. Going forward, it is expected that the federal government will have a renewed presence. The regulated community can expect to see new compliance initiatives through new policies and regulation. The renewed federal presence will not just be evident through actions by the U.S. Environmental Protection Agency, as seen with the recent action by the Department of Justice to rescind certain enforcement memos. The Biden administration is looking at implementing a whole government approach to address certain environmental issues, like climate change and environmental justice.
• We can expect an increase in criminal enforcement of environmental violations. President Biden has stated he will hold polluters accountable, with a priority focus on violations of the Clean Air Act and Clean Water Act. Increased criminal enforcement is one means this administration intends to use to address environmental justice concerns particularly to hold individual corporate actors accountable, when there is a disproportionate impact to certain communities.
• As mentioned, the new administration will utilize regulatory guidance, executive orders and policy documents to swiftly implement the environmental agenda. They will also propose new rules through existing federal statutes, specifically the Clean Air Act and the Clean Water Act. We can expect a focus on regulations that address climate change, such as regulation of greenhouse gases, particularly from power plants, as well as new fuel efficiency standards for passenger cars and lightweight trucks. It is also likely the administration will propose rules to regulate per-and polyfluoroalkyl substances (PFAS).

While these changes are not expected to be immediate, companies should be ready and take proactive measures to address compliance with current and expected regulations and make an effort to be aware of potential environmental justice issues that may exist where facilities are located. It is a good practice to keep an eye on the status of relevant regulations and policies to ensure compliance with applicable laws.

If you have questions about how the Biden administration’s changes to environmental regulation may impact you, please contact Meagan Moore at mmoore@brouse.com or 216-830-6830.