Thompson Coburn’s Environmental Group is closely following the incoming Biden-Harris Administration’s announcements on its potential environmental priorities. Changes come with every new Administration; however, we anticipate relatively quick and more significant changes from the Biden Administration on environmental issues.
Given the regulatory roll-backs undertaken by the Trump Administration, many of which were controversial within EPA, we expect a renewed focus on the Agency itself, its mission and its staff. Some commentators have called this renewed focus a “Humpty Dumpty” approach—i.e., putting the agency “back together” again.
Regardless of one’s political preferences and/or party affiliation, substantial environmental policy changes are coming. To help our clients prepare for these anticipated changes, we have prepared a short list of key areas that we believe the new Administration will focus its attention.
One of the most common questions raised by regulated parties in the lead-up to an administration change is the expected impact of the new administration on environmental inspection and enforcement. Given the significant environmental roll-backs undertaken by the Trump Administration, this question is of even greater importance. Although the EPA has claimed that environmental enforcement activity has actually increased under the Trump Administration, that has certainly not been the perception. Data released by EPA suggests that federal enforcement efforts have waned in recent years.
Regardless, President-Elect Biden has made it clear that environmental policy, including significant increases in enforcement action, is top of mind. In fact, President-Elect Biden has announced an intention to prioritize environmental and climate change issues and “hold polluters accountable.”
So what can the regulated community do now to minimize the likelihood that they will become subject to enforcement action in the coming year(s)?
A key tenet of the Biden-Harris energy and environmental policy agenda is the commitment to strengthen efforts to achieve environmental justice. The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity builds both on the prior work of the Obama-Biden Administration’s EJ 2020 Action Agenda and on President Clinton’s 1994 Executive Order 12898 on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. More specifically, the Biden Plan seeks to elevate the focus and actions relating to environmental justice in a number of fundamental ways, including:
While President-Elect Biden and his team focus on identifying the top priorities of their comprehensive EJ Plan, the annual report issued by the USEPA Office of the Inspector General (OIG) on July 21, 2020 (Report: EPA’s FY2020-2021 Top Management Challenges) provides some helpful guidance on the challenges presented by administration efforts to achieve meaningful integration of EJ considerations into the work of the federal government. Indeed, strengthening EPA’s lead role with other federal government entities as well as the lack of integration across EPA programs and regions are the principal critiques of the Agency’s efforts to address disproportionate impacts on minority and low income populations.
For the regulated community, we expect a forthcoming EJ Executive Order to provide the roadmap for Administration priorities. Anticipated appointments (such as the well-liked and experienced Brenda Mallory to head up the Council on Environmental Quality) tell us that this Administration will follow-through when it comes to enhancing EJ policies. We also expect that, despite the robust commitment of the new Administration to EJ, states will not necessarily sit back and wait for federal action. With successful Congressional action on enhanced EJ legislation in question, more states may step forward (like we have seen in New Jersey) to secure environmental justice advancements. Lastly, empowering communities through real time access to data and stronger tools to boost their capacity to use available information reinforces the need for industry to engage voluntarily, directly and consistently with its community partners and neighbors.
For several years, an emerging important topic has been the regulation of and litigation surrounding per- and poly-fluoroalkyl substances (PFAS), a class of so-called “forever chemicals” that are used in fire-fighting, coating, and many other applications. EPA updated its PFAS “Action Plan” in February 2020. In June, EPA added 172 PFAS chemicals to the TRI. In December, EPA issued interim guidance on destroying and disposing PFAS and PFAS-containing materials in landfills, incinerators, and underground injection control wells. In addition, we previously wrote about the upcoming regulation of PFAS in air emissions and in water discharges. Most of the regulatory action in 2020 regarding PFAS, however, has come at the state, not the federal, level and has particularly focused on investigating PFAS in drinking water.
We expect the federal government’s role with respect to PFAS to increase greatly under the Biden Administration. Among other things, the EPA is likely to:
Some non-essential uses of PFAS may also be restricted. We also expect increased attention to be paid to other emerging contaminants of concern such as 1, 4-dioxane, ethylene oxide, and formaldehyde.
Facilities should begin preparing now for these expected changes. They might want to consider, for instance, reviewing existing SDSs for PFAS and other emerging contaminants and determining whether their manufacturing processes are of the type that may now or in the past have contained such chemicals in air emissions, water discharges, or waste disposal.
Presidential transitions often have involved sharp policy contrasts between the outgoing and incoming occupants, but rarely has there been an issue like climate where the policy difference is so stark between presidential administrations. The Obama-Biden Administration made climate a top priority, particularly in the second term. Trump specifically campaigned in 2016 on reversing the Obama-Biden policies on greenhouse gas emissions and the Trump-Pence Administration largely followed-through. President-Elect Biden made climate one of the pillars of his campaign, and, now that the Biden-Harris Administration is set to take office, the contrast with the Trump Administration could not be more clear. A few policy examples and points of emphasis include:
These positions represent just a fraction of the climate policy differences between the two administrations. The incoming Biden-Harris Administration has made it clear that these policy differences will result in new orders, rules, and, proposed legislation. Further, the new administration has promised to take action on these issues in the first 100 days. There is no doubt that this will certainly result in a changing landscape for the regulated community. Thus, some of the topics identified by the Biden-Harris Administration that we will be watching and analyzing for our clients include:
Thompson Coburn’s Environmental Group is closely monitoring these areas of increased environmental focus for the incoming Biden-Harris Administration. Please stay tuned for more information as the new administration takes shape.
If you have any questions regarding this article, please contact one of the authors above or your regular Thompson Coburn contact.
 See, e.g., Wisconsin Table 1 List of Contaminants of Concern (wi.gov).
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