The Biden administration has signaled a likely return to active and aggressive regulation of environmental matters.
In a fashion similar to the Trump administration's approach to Obama-era regulations, the Biden administration has already vowed to not only reverse Trump-era deregulation, but to go beyond the Obama administration's regulatory efforts.
Perhaps the most glaring example of this possibility is addressing what the Biden- Harris website calls the "existential threat of climate change." Biden promises to "recommit the United States to the Paris Agreement on climate change" and "go much further" by "lead[ing] an effort to get every major country to ramp up the ambition of their domestic climate targets." Indeed, he pledges to "put the United States on an irreversible path to achieve net-zero emissions, economy wide, by no later than 2050."
The Paris Agreement calls for "holding the increase in the global average temperature to well-below 2 degrees Celsius above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels" through nationally determined contributions (NDC) to carbon emission reductions. The U.S.'s NDC was a 26-28 percent reduction below its 2005 level by 2025. According to EPA, gross greenhouse gas emissions were reduced between 2005 and 2018 from 7,392 metric tons of CO2 equivalent (MTCO2e) to 6,677 MTCO2e.
It is unknown at this time to what extent Biden will "ramp up" the U.S.'s already ambitious climate targets or exactly how Biden intends to achieve the "ramp up." He has stated he would invest billions in clean energy development, transition away from the oil industry by 2050, and phase out or end fracking on federal lands. It is also likely that Biden would reverse the Trump administration's rollback of the methane rule for the oil and gas sector.
Another example relates to environmental justice. Biden states that he wants to "ensure that environmental justice is a key consideration in where, how and with whom we build" the clean energy infrastructure and go about "righting wrongs in communities that bear the brunt of pollution." EPA defines environmental justice as the "fair treatment and meaningful involvement of all people, regardless of race, color, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies."
Biden does not provide specifics but does state that his administration will create "good, union, middle-class jobs in communities left behind," presumably in clean energy endeavors. The creation of jobs in the clean energy sector may be how he intends to right the wrongs in potentially over-polluted communities, but it is more likely that there will be a greater push to limit or restrict industrial development in such areas.
There are numerous other Trump era executive orders and regulations the Biden administration will likely address. As to the executive orders, they are easily reversed and Biden has signaled he plans to do so. As to promulgated regulations, EPA must proceed through the notice-and-comment requirements imposed by the Administrative Procedure Act. However, regulations finalized in the final days of the Trump administration may be subject to repeal under the Congressional Review Act, which was used in 2017 to repeal several Obama-era regulations.
It is likely that the deregulatory agenda pushed by the Trump administration will be replaced with a re-regulatory agenda under a Biden administration. To ensure some growth opportunities remain, industrial concerns will have to oppose the Biden agenda as assertively as the environmental groups opposed the Trump agenda.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney of enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.