By many indications, Joseph Biden and Kamala Harris will be President and Vice President in 2021.  If this holds true, key senate run-off races in Georgia will decide if Democrats will control the Executive Office and both branches of Congress or if there will be some “gridlock.”  Policies of every stripe may well hinge on this runoff.

As it relates to environmental policy under Biden, expect an approach that is nothing akin to what the Trump Administration put forth.

Cooperative Federalism Likely Gone

In our blogs over the past four years, we wrote extensively about cooperative federalism that was a departure from any previous administration, Democrat or Republican.  Perhaps nothing was a better indication of the contrarian approach under Trump than the change from the National Enforcement Initiatives to the National Compliance Initiatives.

This approach will likely change in a new administration.

Anticipated Changes in Energy, Enforcement, and Water Policies

Lawyers from Hogan Lovells provided their take on how the Biden Administration may approach key environmental issues in Environmental Law outlook under a Biden Administration.

“…We anticipate the Biden administration will seek to undo many of the deregulatory actions of the Trump administration.  We can further anticipate the Biden administration will seek to strengthen environmental protections by adopting new standards, revising existing standards, and increasing enforcement.  The central feature of Biden’s environmental platform is its ‘Clean Energy Future’ agenda, with a target of a carbon-free power sector by 2035 and net-zero carbon emissions by 2050.  To achieve this agenda, the Biden administration will rejoin the Paris Climate accord, and pursue regulatory measures to combat climate change with a focus on reducing air emissions, advancing alternative fuels and electric vehicles, pursuing clean energy initiatives such as renewables and carbon capture methodologies, reducing fossil fuel development, and prioritizing environmental justice concerns.”

“Revisiting Waters of the United States (WOTUS) rule Under the Clean Water Act:  there is federal jurisdiction over ‘waters of the U.S.’  The Obama administration had issued a revision to WOTUS in 2015, which was the subject of extensive litigation.  The Trump administration issued a repeal and revision of the Obama era rule, which has also drawn litigation for removing groundwater, ephemeral and intermittent streams, and certain agricultural operations from federal oversight.”

These are potentially consequential changes that may have an appreciable impact on the regulated community.

Newspaper "An American Cliffhanger"

What environmental policy changes might we anticipate under a Biden Administration (Photo by Markus Spiske on Unsplash)?

Jurisdictional Waters

One area mentioned above that will be closely watched is how the new administration may address jurisdictional waters under the Clean Water Act.  The new Navigable Water Protection Rule that was final on June 22, 2020, is likely to be scraped; but what will take its place?  The 2015 Waters of the United States (WOTUS) rule under the Obama administration was quickly litigated and never really got off the ground.

The question of what is and is not jurisdictional waters is significant and affects industry, developers, and agriculture.

Environmental Enforcement

Again from the blog by Hogan Lovells, “Enforcement numbers (cases, inspections, referrals) are at a historic low under the Trump Administration.  The Biden administration will focus on exercising its enforcement authority, particularly in its battle against climate change and protection of environmental justice communities.  In this regard, there will be an increase in enforcement under the various environmental statutes with a focus on Clean Air Act cases, safe drinking water, and cleanup of environmental contamination that adversely impacts marginalized and disadvantaged communities.”

Long-Term Decline in Environmental Enforcement

While it is likely that federal environmental enforcement will change under a Biden Administration, the overall downward trend in enforcement dates back to long before Trump’s Administration.

In our October 2019 blog, “Transformation of US Environmental Compliance Enforcement Trends Down – Self-Disclosure Trends Up,” we discussed these long-term trends.

From our October 2019 blog, “According to data from the USEPA, there has been a steady decline in Federal inspections (conducted by EPA) since 2012…. Likewise, civil enforcement has shown a steady decline dating back to 2008.  In fiscal year (FY) 2008 total ‘civil enforcement initiatives and conclusions’ were around 3,700. In FY 2018, this number was cut in half to 1,800.”

Will Biden’s Administration reverse this long-term trend?  The answer may lie in whom he ultimately appoints to be the Administrator of the Environmental Protection Agency.

What Should You Do?

With all the anticipated changes, what should you do if you are managing Environmental Health and Safety Issues?  The most obvious is to make sure you are in compliance and make sure your plans and permits are (1) current, (2) implemented, and (3) organized and accessible.  If you have not conducted a compliance assessment recently, you should consider scheduling this sooner than later.

This is a quick look at what will likely be sweeping changes in a Biden Administration.  How sweeping the changes may be could hinge on that January Senate runoff in Georgia, so this will likely be a closely-watched race.

Keep a close eye on developments at the federal level, but don’t forget to monitor your state initiatives as well.  We will provide updates as we learn about them; watch for our future blogs.  If you have not subscribed to our newsletter, you can do so below.

If you have questions or need assistance with an environmental issue, contact me at 248-932-0228, Ext. 134, and I’ll connect you with one of my colleagues.

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