How the Biden Administration Will Impact Environmental Law

Over the prior four years, the Trump administration made innumerable changes to the broad legal landscape that comprises environmental law. Many of the changes may prove to be shortlived because President Biden has directed all agencies to review and take action to address federal regulations and other actions taken during the prior four years that conflict with his environmental objectives. Accordingly, every executive branch environmental action in the prior four years is at risk of reconsideration, amendment, or revocation.

Due to the massive scale of issues under consideration by the new administration, this article does not identify all discrete issues for which changes are known or anticipated. Instead, we attempt to identify themes and broad areas of focus expected from the administration, along with a few examples of significant, discrete issues. These focus areas include climate change, enforcement, oil and gas, procedural matters, public land use, and social justice.

climate change Climate change will be a key focus of the administration. As a candidate, Biden promised to achieve a 100% clean energy economy and net-zero greenhouse gas (“GHG”) emissions by 2050.1 He has since announced John Kerry as Climate Envoy and Gina McCarthy, former U.S. Environmental Protection Agency (“EPA”) Administrator, as domestic climate coordinator. He also signed an order rejoining the Paris Climate Agreement and established a National Climate Task Force.2 Other changes may include: • New GHG Standards. In American

Lung Association v. U.S. Environmental Protection Agency, issued in January 2021, the D.C. Circuit vacated

EPA’s GHG standards for coal-fired power plants, holding that the

New Source Performance Standard (“NSPS”) provisions in the Clean

Air Act are not necessarily limited to measures within the “fenceline” of a plant.3 This opinion could result in the reinstatement of the

Obama-era GHG standards, as well as new offset and emissions trading measures for other industries. • Vehicle Fuel Standards. An early 2020 rule relaxed Obama-era fuel economy requirements for automakers by lowering the ramp-up on new vehicle average fuel economy from 5% per year to 1.5% per year.

The rule also revoked the Clean

Air Act waiver that had previously allowed California to set its own standards (which other states could then adopt). The Biden administration is expected to undo the new rule.4 • Appliance Efficiency. In January

2020, the Department of Energy (“DOE”) issued a “Process Rule” limiting efficiency measures for appliances and other devices based on new “significance thresholds” and modifying rules for setting test procedures.5 DOE is expected to reverse the rule and to impose standards for additional products.

We also expect that the Federal Energy Regulatory Commission (“FERC”) will facilitate new infrastructure to convey electricity from renewable energy sources and to integrate distributed generation (e.g., rooftop solar) into the grid. DOE programs are expected to focus on electric vehicles, carbon capture, and the transition to clean energy technologies, such as geothermal power plants and hydrogen fuel cells. Due to a largely unconnected electrical grid, FERC jurisdiction could be limited in Texas, unless the state decides to integrate with the national grid in light of the impacts of Winter Storm Uri.

Oil and Gas

During his campaign, Joe Biden pledged that he would “gradually move away” from fracking. As President, he revoked the March 2019 presidential permit for the Keystone XL Pipeline, issued a 60day suspension of new oil and gas drilling permits under federal jurisdiction, and paused federal oil and gas leasing.6 Other measures concerning oil and gas include: • EPA’s NSPS Rules. In late 2020,

EPA published final rules relaxing fugitive emissions requirements for the oil and gas sector and removing applicability for the transmission and storage segments.7 We expect that these rules will be reversed.

• The Renewable Fuel Standard

(“RFS”). EPA’s RFS requires blending renewable fuels into petroleum-based fuels, with volumes increasing annually. Under Biden, we expect more aggressive annual targets and a decrease in the num-

ber of exemptions granted to small refiners.

• Bureau of Land Management’s

(“BLM”) Waste Prevention Rule.

In 2016, the BLM limited venting and flaring of natural gas from wells under its jurisdiction. In October 2020, a federal district court overturned the 2016 rule because the rule targeted air quality, which is within the purview of EPA, and not

“waste.”8 We expect an appeal of this opinion and/or a replacement rule.

• BLM’s Hydraulic Fracturing

Rule. In December 2017, the BLM rescinded a 2015 rule that had established casing design and cement verification logging requirements for fracturing oil and gas wells under BLM jurisdiction.9 We expect that these rules will be reinstated or a new rule proposed.

• The Migratory Bird Treaty Act

(“MBTA”) Take Rule. In January 2021, the U.S. Fish and Wildlife Service determined that the take prohibitions under the MBTA apply only to deliberate actions, meaning that “incidental” take is no longer prohibited.10 We expect reversal.

The oil and gas industry may also be a target for additional regulations targeting GHG emissions, such as emissions offset and trading rules based on the D.C. Circuit’s opinion in American Lung Association.

increased enforcement The Biden administration is expected to reverse the decline in enforcement and penalties for environmental matters. Using EPA as an example, we note that a 2020 report by EPA’s Inspector General found that agency inspections fell by 50% from 2010 to 2018, enforcement cases initiated after such inspections fell by 52% from 2007 to 2018, administrative actions were down by 58%, and total assessed penalties dropped from a high of $6.1 billion in 2016 to $69 million in

2018.11 Referrals to the U.S. Department of Justice (“DOJ”) also hit a low in 2018.

Beyond a return to former enforcement levels, we also note that there are a number of discrete enforcement-related measures expected. These include: • New Litigating Division. Biden is expected to create a new litigating division at the DOJ devoted to environmental and climate justice.12 It is unclear how this division will mesh with the existing Environmental and Natural Resources Division. • DOJ’s Ban on Agency Guidance.

Current policy prohibits DOJ litigators from using agency guidance documents to establish violations of law in civil enforcement matters—a significant impediment for federal litigators.13 We expect DOJ to reverse or relax this policy.

• DOJ’s Ban on Supplemental En-

vironmental Projects (“SEPs”). A

March 2020 DOE memo currently bans the use of SEPs benefiting third parties in consent decrees and

other settlements.14 We expect that this will be reversed. • Reversing EPA Policies. We expect reversals of (1) EPA’s March 2018 policy requiring regional offices to submit a briefing to EPA headquarters prior to a judicial referral to the DOJ; and (2) an April 2018 policy discouraging “Next Generation” compliance tools in enforcement settlements, such as advanced monitoring and third-party verification measures.

air and Water issues Although GHG emissions will be the core focus, we expect that the Biden administration will also address a number of traditional air and water issues, including: • Waters of the United States.

Rules in 2019 and 2020 narrowed the definition of “waters of the

United States” promulgated in 2015, thereby restricting federal jurisdiction under the Clean Water Act. We

expect the Biden EPA to undo these changes.

• National Ambient Air Quality

Standards (“NAAQS”). In late 2020,

EPA decided it would not revise the NAAQS for particulate matter and ozone. We expect that EPA will lower the existing NAAQS, leading to new nonattainment areas. • Cross-State Pollution. In mid2020, the D.C. Circuit held that

EPA improperly denied a petition by New York requesting action to reduce emissions from upstream states. This could lead to a new multi-state emissions rule.

Procedural matters Challenges to environmental rules and approvals are often based on procedural requirements. For example, such challenges have plagued the Keystone XL project. Below, we highlight several procedural issues:

• National Environmental Policy

Act (“NEPA”) Rules. Mid-2020 re-

visions to the Council on Environmental Quality’s NEPA regulations imposed strict deadlines for assessments and limited the scope of the impacts that must be assessed.

Reversal or revision is expected. • EPA’s Science Rule. A January 2021 rule requires EPA rulemakers to discount scientific studies for which underlying data is not available for public scrutiny. We expect this rule to be short-lived. • The Cost of Carbon. Obama administration estimates established the damage from carbon dioxide emissions at $50 per ton in 2020, escalating to $82 per ton by 2050.

Current estimates are only $7 per ton in 2020 and $11 per ton in 2050. The new administration will undoubtedly revise this metric.

Eddie Lewis is the co-head of Norton Rose Fulbright’s Energy, Infrastructure and Environmental practice in the United States. He is a partner in the firm’s Houston office. Bob Greenslade is a counsel attorney in Norton Rose Fulbright’s Energy, Infrastructure and Environmental practice group. He maintains offices in the firm’s Houston and Denver offices.

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1. Exec. Order No. 14008 § 201, 86 Fed. Reg. 7619, 7622 (Jan. 27, 2021), https://www.federalregister.gov/documents/2021/02/01/2021-02177/tackling-the-climate-crisis-at-home-and-abroad. 2. Id. at §§ 102, 203, 86 Fed. Reg. at 7619–21, 7623. 3. See generally Am. Lung Ass’n v. U.S. Envtl. Protection

Agency, No. 19-1140 (D.C. Cir. 2021). 4. See Lauren Sommer, Biden To Move Quickly on Climate

Change, Reversing Trump Rollbacks, NPR (Jan. 20, 2021), https://www.npr.org/sections/inauguration-day-liveupdates/2021/01/20/958854421/biden-to-move-quicklyon-climate-change-reversing-trump-rollbacks. 5. Department of Energy Issues Final “Process Rule” Modernizing Procedures in the Consideration of Energy Conservation Standards, U.S. DEP’T OF ENERGY (Jan. 15, 2020), https://www.energy.gov/articles/department-energyissues-final-process-rule-modernizing-procedures-consideration-energy. 6. Exec. Order No. 13990 § 6, 86 Fed. Reg. 7037, 7041 (Jan. 20, 2021), https://www.federalregister.gov/documents/ 2021/01/25/2021-01765/protecting-public-health-andthe-environment-and-restoring-science-to-tackle-theclimate-crisis. 7. EPA Issues Final Policy and Technical Amendments to the

New Source Performance Standards for the Oil and Natu-

ral Gas Industry, U.S. ENV’T PROT. AGENCY, https:// www.epa.gov/controlling-air-pollution-oil-and-naturalgas-industry/epa-issues-final-policy-and-technical (last visited Feb. 23, 2021). 8. See generally Wyoming v. U.S. Dep’t of Interior, No. 2:16-CV-0285-SWS, 2020 WL 7641067, at *27 (D. Wyo.

Oct. 8, 2020). 9. BLM Rescinds Rule on Hydraulic Fracturing, U.S. DEP’T OF

INTERIOR, BUREAU OF LAND MGMT., https://www. blm.gov/press-release/blm-rescinds-rule-hydraulicfracturing (last visited Feb. 23, 2021). 10. Press Release, U.S. Fish & Wildlife Service, U.S. Fish and

Wildlife Service Finalizes Regulation Clarifying the Migratory Bird Treaty Act Implementation (Jan. 5, 2021), https://www.fws.gov/news/ShowNews.cfm?_ID=36829. 11. EPA’S COMPLIANCE MONITORING ACTIVITIES, EN-

FORCEMENT ACTIONS, AND ENFORCEMENT RE-

SULTS GENERALLY DECLINED FROM FISCAL YEARS 2006 THROUGH 2018, U.S. ENV’T PROT. AGENCY 7–8, 13 (2020), https://www.epa.gov/sites/production/ files/2020-04/documents/_epaoig_20200331_20p-0131_0.pdf. 12. Ellen M. Gilmer, Biden Bolsters DOJ Focus on Environmental

Justice, Climate, BLOOMBERG L. (Jan. 27, 2021, 2:53 p.m.), https://news.bloomberglaw.com/environment-andenergy/biden-bolsters-doj-focus-on-environmentaljustice-climate. 13. DOJ Limits Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases, NAT’L L. REV., Jan. 26, 2018, https://www.natlawreview.com/article/doj-limitsuse-agency-guidance-documents-affirmative-civil-enforcement-cases. 14. Memorandum from Jeffrey Bossert Clark, Assistant Attorney General to ENRD Deputy Assistant Attorney Generals and Section Chiefs (Mar. 12, 2020), https://www. justice.gov/enrd/file/1257901/download.

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