Biden Administration Releases Unified Agenda, Outlining Regulatory Priorities

Brownstein Hyatt Farber Schreck

On June 11, the Biden administration released its first Unified Agenda of Federal Regulatory and Deregulatory Actions, an outline of agency priorities released every fall and spring. The unified agendas set nonbinding goals for regulatory actions, providing insight into the administration’s priorities for the upcoming year. The goals outlined in the Unified Agenda may never come to fruition.

The Unified Agenda released on June 11 establishes a number of timelines to roll back Trump environmental rules, set new regulations on climate, clean water and energy efficiency, and prepare the regulatory side of the federal government to implement President Biden’s proposed American Rescue, Jobs, and Families Plan that has not passed through Congress. Some of the most notable proposed changes related to energy and the environment are listed below.

Oil and Gas

Following the Executive Order pause on oil and gas leasing on federal lands earlier this year, the Department of the Interior (DOI) continues to review existing practices and does not anticipate issuing a proposed rule on the topic until May 2022.

The court ruling from June 15 enjoining the Executive Order pause on oil and gas leasing will likely not influence the timing or content of new rulemakings on oil and gas.

Additionally, an updated rule regarding venting and flaring of methane from onshore oil and gas leases may be proposed later this year, but no date is listed for when the rule may be finalized.

Within DOI, the Bureau of Safety and Environmental Enforcement (BSEE) is slated to propose a rule in September 2021 that will revise the Trump administration’s changes to the well control and blowout preventer system rule for offshore oil and gas production; no date is listed when the rule may be finalized. This would be the second overhaul of this highly technical rule since 2016.

The Environmental Protection Agency (EPA) aims to publish a proposed rule that will set new emissions guidelines for methane emissions from existing oil and gas operations in September 2021 and will work to finalize that rule in September 2022.

Renewable Energy

DOI’s Bureau of Ocean Energy Management (BOEM) aims to issue a proposed rule in September 2021 that will update and clarify its renewable energy regulations in regard to offshore renewable energy development.

Emissions

Due a recent court ruling rejecting the Trump administration’s rule regarding carbon dioxide emission from power plants and the Biden administration’s desire for robust stakeholder input, there is no timetable listed for a new rule regarding carbon dioxide emission from existing power plants. However, the EPA will likely propose new tailpipe emissions and fuel economy standards in July 2021 and finalize a rule in December 2021.

Following legislation from 2007 that required the Department of Energy (DOE) to create new standards for the construction of all new federal buildings, there will be a supplemental rule proposed in December 2021. In the rule, the Biden administration will aim to reduce fossil fuel-generated energy consumption in new buildings and buildings undergoing major renovations.

The National Environmental Policy Act (NEPA)

The Council on Environmental Quality (CEQ) has plans to propose three new rules related to NEPA. Two of the new rules are aimed at undoing actions the Trump administration took— narrow changes will be proposed in July 2021 and broader changes proposed in November 2021. CEQ is also working to bring back previous guidance that would factor in greenhouse gas emissions and climate change during the NEPA process and will make an announcement on the topic in September 2021.

The Army Corps of Engineers is working to issue updated guidance in February 2022 related to NEPA categorical exclusions.

Water

The EPA will move forward with required deadlines of March 2023 for proposing and September 2024 for finalizing drinking water standards related to PFOA and PFOS. The agency is also considering how to move forward with a regulation to ensure polluters pay for cleanup of PFOA and PFOS; however, no dates are listed.

The EPA plans to finalize a rule in December 2021 related to monitoring 29 per- and polyfluoroalkyl substances (PFAS) in drinking water.

The EPA continues to work on a new definition of “water of the United States” and a standard for lead in drinking water, but no dates are listed regarding potential new rules.

The Biden administration did indicate it will continue to prioritize clean drinking water for tribal communities in a number of planned rules.

Wildlife

The Biden administration intends to finalize a rule in October 2021 that will revoke the Trump administration’s changes to the Migratory Bird Treaty Act (MBTA).

The Fish and Wildlife Service (FWS) may issue a number of rules related to the administration of the Endangered Species Act, including critical habitat and climate over the next year.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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