Forecast of Federal Environmental Policy in 2021

January 11, 2021
Michael Dillon, Esq. and Zachary J. Koslap, Esq.
MGKF Special Alert - Federal Forecast 2021

With President-elect Biden set to begin his term later this month, 2021 will mark a major shift in federal environmental policy, though the incoming administration will face its share of challenges as it looks to advance its new agenda.  In its last year in office, the Trump administration enacted a flurry of rulemaking and executive action in an effort to lock in its environmental policy objectives beyond 2020, some of which were covered in detail in our 2020 forecast.  For example, the Trump administration finalized significant changes to the National Environmental Policy Act (NEPA), enacted the Navigable Waters Protection Rule, and undertook important rulemaking efforts under the Clean Air Act.  Though the Biden administration will be coming into office with different policy priorities, some of the Trump administration’s recent rulemaking and policy efforts may make advancing its environmental agenda more difficult.  To that end, this federal forecast provides an overview of the anticipated actions that an incoming Biden administration may take and more detailed coverage of the federal actions that will remain important in 2021.   

President-elect Biden has made clear that climate change will be a major priority in the incoming administration’s overall environmental policy objectives.  Accordingly, Biden has announced his intention to reenter the Paris Climate Agreement on the first day of his presidency.  The United States formally entered the Paris Agreement under the Obama administration on September 3, 2016 and committed to reduce greenhouse gas emissions by 26 percent to 28 percent from 2005 levels by 2025.  After the Trump administration repealed and replaced the Obama-era Clean Power Plan, the United States gave notice of its intent to withdraw from the Paris Agreement on November 4, 2019, and the withdrawal formally took effect one year later on November 4, 2020.  Although it is unclear whether the Biden administration will commit to the same greenhouse gas emissions reductions as originally proposed in 2016, Biden has made clear his priority to cooperate internationally on the reduction of greenhouse gas emissions.    

The Biden transition team also has signaled a renewed emphasis on environmental justice.  During his presidential campaign, Biden pledged to prioritize environmental justice initiatives across the federal government, including through the creation of an environmental and climate justice division within the U.S. Department of Justice (DOJ).  Additionally, Biden has announced cabinet-level nominees to the Environmental Protection Agency, Department of Interior, and the Council on Environmental Quality (CEQ) that indicate the incoming administration’s prioritization of addressing environmental justice concerns. 

An early opportunity for the Biden administration to advance both climate change and environmental justice priorities may be through a rollback of the Trump administration’s recent overhaul of NEPA’s implementing regulations.  Earlier this year the Trump administration finalized new regulations revamping the environmental review process of major federal actions under NEPA, with the intention of reducing the time and resources required for a federal agency to complete a NEPA review.  Among other changes, the new regulations eliminated the requirement to consider a project’s cumulative impacts, a provision through which climate impacts were often considered.  The Biden administration may attempt to strengthen requirements related to consideration of climate change and environmental justice impacts of major federal actions. Exactly how far the Biden administration will go to rollback the recent changes to the NEPA review process remains to be seen, however, as the transition team has signaled a competing priority of quickly advancing national infrastructure projects that could be required to move through the NEPA review process.

The Biden administration may also look to reverse the Trump administration’s decision to end the use of supplemental environmental projects (SEPs) in settlement agreements as part of its focus on climate change and environmental justice initiatives.  As noted in more detail in this federal forecast, the use of SEPs in settlement agreements have been favored by members of the regulated community, EPA, and community beneficiaries, and it is anticipated that the Biden Administration may revive the use of SEPs, particularly as part of addressing environmental justice and climate justice concerns in certain overburdened communities. 

The Biden administration is expected to target other recent rulemakings from the Trump administration for potential rollback, including, among other examples, the Affordable Clean Energy Rule, the SAFE Vehicles Rule, and rules modifying implementation of the Endangered Species Act.  Procedurally, however, the Biden administration may have an easier time reversing President Trump’s executive orders that touch upon the environmental sector.  For example, Biden is expected to rescind E.O. 13771 “Reducing Regulation and Controlling Regulatory Costs,” which directs agencies to eliminate two rules for every rule added.  Biden also may look to rescind E.O. 13891 “Promoting the Rule of Law Through Improved Agency Guidance Documents,” which directs federal agencies to develop regulations that set forth processes and procedures for issuing guidance documents.  Among other requirements, the recently finalized rule implementing E.O. 13891 requires EPA to notify the public when it issues new guidance and will open public notice and comment opportunities for the issuance of what EPA determines to be significant guidance. 

Other recent rules and guidance adopted by the Trump administration could continue to impact the regulatory community in 2021 and beyond.  In 2020, for example, EPA finalized the Navigable Waters Protection Rule, which amended the scope of the waters of the United States (WOTUS) regulated under the Clean Water Act, following the Trump administration’s repeal of the 2015 WOTUS rule.  The Trump administration likewise took recent actions under the Clean Air Act, publishing final rules and guidance impacting New Source Review, Startup, Shutdown, and Malfunction, risk management planning, and other programs.  EPA also issued additional rulemaking in connection with the Lautenberg Act amendments to the Toxic Substances Control Act; implemented its Unregulated Contaminant Monitoring Rule for the Fifth Monitoring Cycle (UCMR 5); and has taken additional steps to regulate certain PFAS and PFOA in drinking water and in other environmental media. 

Additional items facing an uncertain future under the Biden administration include EPA’s new draft guidance addressing the Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund and EPA priorities under the Superfund program.  EPA’s Maui guidance places the Supreme Court’s “functional equivalent” analysis into context within EPA’s NPDES permit program.  With the Court’s holding in Maui still fresh, the Biden administration may take a more expansive view of what it considers a functional equivalent of a direct discharge from a point source into navigable waters.  Additionally, the Biden administration may implement different priorities under the Superfund program, under which the Trump administration had sought to promote efficiency in cleanups, including climate resiliency, environmental justice, and emerging contaminants.