By Jeryl L. Olson, Rebecca A. Davis, and Patrick D. Joyce

Seyfarth Synopsis: As the potential for a Presidential administration change moves closer to reality, another dramatic agenda swing is possible in the environmental regulatory world, from an anti-regulation Trump administration to a pro-enforcement Biden administration. While the past four years have been about easing restrictions on businesses the next four will likely be an attempt to promote an environmental protection agenda.

Shortly after the 2016 Presidential election, we predicted a rapid and dramatic shift in environmental policies under a Trump administration including regulatory reform, energy deregulation, a 180-degree shift on climate change, and a shift in the U.S. Environmental Protection Agency’s National Enforcement Initiatives. Many of these predictions came true and some are currently in the works. Four years later, what can we expect to see under a potential Biden administration?

The Biden Administrations Environmental Agenda

Since the November 3, 2020 election, presumed President-Elect Biden has wasted no time reiterating his plans for a significant overhaul, if not a complete reversal, of Trump-era initiatives. In no uncertain terms, the Biden administration affirmed its commitment to aggressively combat climate change and its plans to re-engage with the international community to achieve these goals. One of the first expected acts of the Biden administration will be to re-join the Paris climate agreement, which was passed in 2015 as a pledge to limit global warming to well below two degrees Celsius above pre-industrial levels and ideally to 1.5 degrees Celsius. If it rejoins the agreement on January 20, 2021, the U.S. would officially be back in 30 days later.

While we will know more details in the coming months, a potential Biden administration has already telegraphed goals that include executing sweeping executive orders to address:

  • Achievement of a 100% clean energy economy, reaching net-zero emissions no later than 2050;
  • Improvement of infrastructure so that buildings, water, transportation and energy technology work to prevent, reduce and withstand a changing climate;
  • Ramping up global initiatives and incorporate combating climate change into foreign policy, national security and approaches to trade;
  • Protecting vulnerable and low-income communities from pollution; and
  • Protecting communities that rely on jobs created through oil, gas and coal.

What do these strategies mean to business, and what can we expect from a legal standpoint?

  1. Not only has Biden promised that the United States will immediately rejoin the Paris agreement, he has espoused his desire for the United States to take a larger role in global initiatives to combat climate change. Thus, we can anticipate a push toward more international cooperation and new rules and regulations, including new environmental laws targeting imports and exports.
  2. The Biden administration will focus on reducing air emissions, and likely rollback recent federal rules and policies (some as recent as from October 2020), which under the Trump administration allowed “major source” facilities to expand and upgrade without undergoing certain of the complex and time-consuming historic New Source Review procedures that previously had been a source of roadblocks to industrial expansion.
  3. Support for the United States Environmental Protection Agency (USEPA) and environmental sections of the Department of Justice will increase through increased budgets and employment opportunities. Similar to other agencies, we will likely see an increase in hiring, which will be followed by an increased number of federal inspections.  In connection with the increased quantity and frequency of inspections, the USEPA is also likely to expand the scope of enforcement actions, resulting in a more stringent regulatory environment.
  4. Penalty policies are likely to become more stringent and aggressive, and the Biden administration could force the death knell for the use of “Supplemental Environmental Projects” historically used by businesses to offset monetary penalties in enforcement settlements.
  5. Permitting may become more stringent, and businesses can expect to see increased scrutiny on permit applications for new and modified emissions sources in all areas of the country, but particularly in environmental justice areas. There also will be a tightening of regulatory limits on air emissions and water discharges across a wide range of industries.
  6. Business can expect to see continued, and even more aggressive, scrutiny of new chemicals and products or new uses of existing chemicals and products under TSCA and FIFRA.
  7. The Trump-era relaxation on wetlands permitting rules that stimulated real estate development will likely be reversed, and Obama-era rules re- implemented.
  8. Tax breaks for corporations, especially gas, oil, and coal companies, will likely be reduced or eliminated. However, we likely will see new policies and initiatives to promote renewable energy, including wind and solar power. Similar renewable resource and energy efficiency initiatives are expected for the automotive and airline industries.
  9. Enhanced protections and rehabilitation of greenspaces are expected, and oil and gas exploration and production will likely see heavier regulation. While fracking may not be banned, it may become more limited. Monetary penalties and other compensatory measures for natural resource damages stemming from the oil and coal industries will likely be increased and enhanced.
  10. To combat climate change, environmental regulations will likely overlap with, and may even be built into, other rules and regulations in the areas of trade, national policy, housing and urban development, transportation, national security and other areas. Thus, businesses will need to evaluate their standard procedures, contracts and policies to confirm compliance with new laws.

What will happen to ongoing litigation?

The Trump administration has not yet been able to work all of its policies and rollbacks of Obama-era environmental policies though the courts. We anticipate that a Biden Justice Department will abandon ongoing litigation pursued by the Trump administration, which will grind to a halt and go unresolved.

One aspect of environmental litigation that the Biden administration will have to pay attention to is the new 6-3 Conservative majority in the Supreme Court. The administration will seek to tailor new or revamped regulations to avoid legal challenges designed to appear before the Supreme Court, but such scrutiny may be inevitable.

Many outstanding questions on the scope of USEPA’s regulatory power are still ongoing from Obama-era polices such as the Clean Power Plan and the Clean Water Rule. We can expect new litigation if the Biden administration attempts to reinstate Obama-era policies or craft its own new policy.

This environmental legal whiplash has frustrated many businesses and legal practitioners. Businesses should remain cautious in their environmental endeavors and carefully consider Biden new administration policies in their business plans.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Environmental Team.