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.
- Expected increase in federal enforcement
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)?
- Review and/or update existing environmental management systems ("EMS") or consider developing an EMS
- Adoption of an EMS can assist a facility to develop concrete plans and strategies for continuous improvement of its environmental performance
- Development and implementation of an EMS also demonstrates the facility's commitment to compliance
- Perform an environmental compliance audit (under attorney/client protection or otherwise)
- Allows you to evaluate current compliance, identify potential problems and adjust practices or undertake corrective action as needed
- Can be performed by internal staff or outside consultants
- Consider voluntary disclosure of non-compliance
- EPA and some states provide incentives for facilities to voluntarily discover and fix violations—e.g., potential penalty reductions, avoidance of criminal prosecution
- Maintain good relationships with state regulators
- Most environmental programs have been delegated to the states, which means that state inspectors and regulations will be the first point of contact
- Many state regulators are more than willing to discuss regulatory requirements, provide guidance and offer compliance assistance where necessary
- Ensure facility personnel know what to do during an inspection and make sure that required records are well-organized and easily accessible
- Environmental justice and the empowerment of communities through data and science
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:
- Establishing an Environmental Justice Division within the U.S. Department of Justice. Although the Biden Plan points to several directives that will be given to this Division, we expect to see as one the first actions a strengthening of the partnership with the Office of Civil Rights as that Office goes through its own rebuilding.
- Building on EPA's EJSCREEN data tool. In addition to using EJSCREEN in a more robust way to monitor environmental pollution and provide access to the data in real time, the Biden Plan calls for the creation of a new environmental public health corps intended to boost community use of data in a more meaningful way.
- Using as its base its historic commitment to invest clean energy resources into disadvantaged communities, the Biden Plan brings together the concepts of climate justice and environmental justice to synchronize Administration action around climate inequities, disaster response and the disparity of impacts borne by disadvantaged communities.
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.
- PFAS and other emerging contaminants of concern
For several years, an emerging important topic has been the regulation of and litigation surrounding per- and polyfluoroalkyl 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:
- establish drinking water standards for PFAS chemicals; and
- designate some PFAS chemicals as hazardous substances under CERCLA.
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. 1
- Emphasis on climate change and reducing/eliminating greenhouse gas emissions
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:
- The Basis of Climate Change: Trump questioned the scientific premise of climate science and the threat posed by climate change. President-Elect Biden has made climate scientists a key part of his transition team and has called climate change an "existential threat."
- International Cooperation: Trump withdrew the United States from the Paris Climate Accord. Biden promises to rejoin the accord immediately after he takes the Oath of Office.
- Fuel Economy Standards: Trump repealed more stringent fuel economy standards for cars and trucks. Biden promises to develop entirely new fuel economy standards "aimed at ensuring 100% of new sales for light and medium-duty vehicles will be electrified."
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:
- Federal Permitting: Biden has indicated that he will require that every federal permitting decision must consider the effects of greenhouse gas emissions and climate change. Because the Executive Branch has the rulemaking power, this change could be put in place quickly and have an impact on federal permit actions almost immediately.
- Federal Infrastructure: The Biden regulatory agenda includes a provision that "every federal infrastructure investment should reduce climate pollution." Because Biden has also proposed a significant federal infrastructure program, this pledge will certainly impact the construction industry.
- Agriculture: The Biden team has highlighted changes in agriculture as potential methods to reduce climate change, including decarbonization of ag operations through the use of biofuels and incentives for growers to sequester carbon in crops or in soil. The incoming administration has also identified methane emissions from agriculture as a target for reducing GHGs.
- Industrial Operations: The Biden-Harris Administration aims to focus on industrial operations in sectors beyond coal-fired utilities. Some of their proposals involve broad based incentives such as more financial assistance for renewables and electric vehicles, while other proposals focus on specific operational issues such as decarbonizing industrial heat used to make steel and concrete.
- Climate Disclosure: Biden has proposed requiring all publicly-owned companies to disclose climate risks and the greenhouse emissions from their operations and supply chains. This also could be put in place quickly, which would necessitate new obligations for environmental and sustainability personnel in various industries.
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.
1 See, e.g., Wisconsin Table 1 List of Contaminants of Concern (wi.gov).
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