Now that the results of a tumultuous presidential election appear clear, attention shifts to what to expect during President-elect Joe Biden’s first term. It is fair to say that a Biden White House will sharply contrast with the administration of President Donald Trump. One critical difference affecting regulated industries will be the renewed emphasis on enforcement of federal environmental laws, coupled with a shift in priorities and areas of focus. This alert discusses the expected ramp-up of environmental enforcement and what entities can do to prepare for the anticipated changed environmental legal landscape under a Biden administration.
By several metrics, such as the number of criminal prosecutions and dollar value of civil settlements, enforcement of bedrock environmental statutes like the Clean Air Act and Clean Water Act significantly declined over the last four years as the Trump administration showed a preference for compliance assistance and deferring enforcement to states. That trend is unlikely to continue under the Biden administration. During the campaign, former Vice President Biden outlined his intention to crack down on polluting entities, including by seeking personal liability for corporate executives where warranted. A Biden EPA, through the Office of Enforcement & Compliance Assurance, could make good on the promise of tougher enforcement by more actively enforcing the foundational pollution statutes, including by partnering with states to jointly prosecute polluters.
Through an aggressive deregulatory agenda, the Trump administration sought to narrow the jurisdictional reach of statutes such as the Clean Air Act and the Clean Water Act. As such, in addition to an uptick in enforcement brought about by a more assertive EPA, the jurisdictional interpretation under which EPA may bring enforcement actions will return to the pre-Trump approaches or, in some cases, even expand as the Biden administration restores environmental regulations and policies rolled back by the Trump administration.
One such area is the regulation of greenhouse gas (GHG) emissions. A top priority for the Biden administration will be addressing climate change through administrative action, especially if the prospect of climate-related legislation is thwarted by a divided Congress. Some of the Trump administration’s most sweeping environmental regulatory changes specifically targeted Obama’s efforts to curb GHG emissions under the authority of the Clean Air Act. Signature Trump regulations such as the Safer Affordable Fuel Efficient (SAFE) Vehicles rule and the Affordable Clean Energy rule (which replaced the Obama-era Clean Power Plan) would need to be replaced by formal rulemaking, meaning potential enforcement of more stringent GHG rules is likely several years away.
Restoring broader protections under the Clean Water Act (CWA) will be another priority for the Biden administration. Even during his 2016 campaign for presidency, President Trump vowed to repeal President Obama’s “Waters of the United States” (WOTUS) regulation, which set forth a broad jurisdictional interpretation of the CWA. With promulgation of the Navigable Waters Protection Rule, Trump’s EPA significantly narrowed the protections provided in the controversial WOTUS rule and turned over much regulatory responsibility to states and local authorities. We can expect the Biden administration to repeal and replace the Trump CWA rule, and the outcome could significantly affect CWA permitting, including permits issued by the Army Corps of Engineers under Section 404 of the CWA.
President-elect Biden and Vice President-elect Kamala Harris have also made environmental justice a key component of their environmental and climate platform. Indeed, President-elect Biden intends to establish a new Environmental and Climate Justice Division within the Justice Department to carry out this mission. Expect a particular focus on enforcement in fence line communities where heavy industries—including large stationary sources like coal-fired power plants—have traditionally been sited. The new Environmental and Climate Justice Division would also “strategically support” ongoing climate litigation.
It is also likely that the Biden administration will take a more expansive view of its settlement authorities. Perhaps most notably, the once-popular use of environmentally beneficial Supplemental Environmental Projects as a component of civil settlements may see a comeback. These projects, which typically must have some nexus to the underlying violation, have been used in the past to benefit local communities.
Regulated entities should follow these expected changes closely and anticipate greater enforcement of environmental laws over the next four years. Companies should consider taking proactive measures, including by examining internal environmental compliance, and by engaging in the regulatory process through the public review and comment as proposed regulations are published.
The regulatory process is a deliberate one, so many of these enhanced environmental enforcement tools will take time to implement. However, where the Biden administration can use executive orders, guidances, formal initiatives or other non-regulatory tools to reverse Trump-era environmental policies, enforcement actions could come sooner.