What Will a Biden Administration Mean for Environmental Law?

The regulatory landscape, particularly in environmental law, will likely change significantly once President-elect Joe Biden takes office in January

The regulatory landscape will likely change significantly once President-elect Joe Biden takes office in January. Environmental law will likely see some of the biggest changes, with many of President Donald Trump’s business-friendly policies replaced by those favored by environmental advocates.

Biden Administration’s Environmental Agenda

Although it will take time for Biden to implement his environmental agenda, regulated entities should be prepared for stepped-up regulatory enforcement. In addition to staying on top of legal updates, entities can be proactive by identifying areas where compliance changes may be required.

To facilitate the process, below are a few key areas that President-elect Biden has identified as top priorities:

• Environmental Justice: The Biden Administration plans to overhaul the federal government’s environmental justice policy and elevate environmental justice throughout the federal government. Specific initiatives include: overhauling the 1994 Executive Order 12898 (EO 12898) on Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations; implementing, to the extent possible by executive action, the Environmental Justice Act of 2019; reestablishing the federal government’s existing environmental justice groups as the White House Environmental Justice Advisory Council and White House Environmental Justice Interagency Council, both reporting directly to the Chair of the White House Council on Environmental Quality (CEQ), who reports directly to the President.
• Enforcement: The Biden Administration plans to direct the Department of Justice (DOJ) and Environmental Protection Agency (EPA) to prosecute pollution cases to the fullest extent of the law. With regard to criminal liability, Biden’s plan calls for establishing an Environmental and Climate Justice Division within the DOJ. It also includes seeking additional legislation to hold corporate executives personally accountable – “including jail time where merited.” 
• Clean Energy/Climate Change: The Biden Administration’s climate plan sets an ambitious goal of achieving a 100% clean energy economy and net-zero emissions no later than 2050. To accomplish this initiative, the President-elect has outlined several executive actions that he plans to take within his first 100 days in office. They include, but are not limited to: recommitting the United States to the Paris Agreement; establishing “aggressive” methane pollution limits for new and existing oil and gas operations; developing “rigorous” new fuel economy standards; requiring any federal permitting decision to consider the effects of greenhouse gas emissions and climate change; and requiring public companies to disclose climate risks and the greenhouse gas emissions in their operations and supply chains. Many of the President-elect’s most ambitious climate initiatives will require Congress to get on board. Should Republicans maintain control of the Senate, it will significantly hinder Biden’s ability to enact sweeping environmental legislation.
• PFAS: The Biden Administration will seek to address per- and polyfluoroalkyl substances (PFAS) pollution by designating PFAS as a hazardous substance, setting enforceable limits for PFAS in the Safe Drinking Water Act, prioritizing substitutes through procurement, and accelerating toxicity studies and research on PFAS.
• Conservation: President-elect Biden’s environmental plan calls for conserving 30% of America’s lands and waters by 2030. Among other initiatives, the Biden Administration plans to permanently protect the Arctic National Wildlife Refuge and prohibit new oil and gas permitting on public lands and waters. The administration is also expected to restore the boundaries of Utah’s much-contested Bears Ears and Grand Staircase-Escalante national monuments.
• Clean Water Act: The Biden Administration’s environmental plan stresses the importance of protecting the country’s water systems, including the need to address issues such as run-off and aging infrastructure. It does not directly address the Clean Water Act, which has been the source of controversy since the Obama Administration. Accordingly, it is unclear if the Biden Administration would seek to salvage the Obama-era rules or start from scratch.

What’s Next?

Some of President-elect Joe Biden’s proposals can be accomplished through executive action, such as elevating the importance of environmental justice and rejoining the Paris Agreement. Under the Biden Administration, the EPA is also likely to reverse course from its business-friendly approach and adopt a more aggressive approach to enforcement. The EPA will also likely reverse many regulatory roll-backs that occurred under President Trump, particularly those involving air/water pollution, conservation, toxic chemicals, and drilling. However, most changes will need to go through the formal rulemaking process. As environmental policy changes work their way through the regulatory and legislative process, we encourage regulated entities to participate by submitting comments and feedback. We also advise entities to stay in close contact with legal counsel, which can help you are in the best position to adapt to any legal changes.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Edward “Teddy” Eynon, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.