Climate, NEPA, Environmental Justice Dominate Hearing for EPA, CEQ Nominees

Akin Gump Strauss Hauer & Feld LLP

Akin Gump Strauss Hauer & Feld LLP

During yesterday’s Senate Environment and Public Works Committee hearing, President Biden’s nominees for Chair of the White House Council on Environmental Quality (CEQ), Brenda Mallory, and for Deputy Administrator the Environmental Protection Agency’s (EPA), Janet McCabe, offered further clues on the administration’s environmental priorities and the congressional Republicans’ response. Three themes stood out:
  • Climate change issues—including greenhouse gas (GHG) emissions, carbon sinks and infrastructure resilience—will be a flashpoint over the next four years. Senators quizzed the nominees on EPA’s plans for a Clean Power Plan (CPP) replacement and how the administration will calculate and use the “social cost of GHGs” in rulemakings. McCabe said “we would not have put [the CPP] forward if we did not believe that we were acting within the four corners of the Clean Air Act,” referring to EPA’s section 111(d) authority under the Clean Air Act. Mallory pledged “an opportunity for public participation” in the new administration’s approach to calculating the social cost of GHGs.
  • National Environmental Policy Act (NEPA) reform will be central, too. Republican senators also pressed Mallory on CEQ’s intentions for incorporating elements of former president Trump’s “One Federal Decision” policy for permitting major infrastructure projects—since revoked by a Biden executive order—and his administration’s July 2020 revisions to NEPA’s implementing regulations concerning environmental reviews for federal actions, like permitting. Mallory largely deflected, saying Biden’s executive order directed CEQ to “look at [the One Federal Decision] policy, to see whether or not it should be revised or reinstated.” However, she indicated an openness to keeping some Trump-era changes, saying that the One Federal Decision policy is not “off the table,” and that reviews must be conducted in a way “that ensures that we have significant infrastructure projects and that economic recovery ... can occur.”
  • Republicans may be seeking to re-define environmental justice narrative. Sens. Shelley Moore Capito (R-WV), the committee’s top Republican, and Dan Sullivan (R-AK) appeared to reframe the environmental justice conversation during the hearing. Sullivan linked dramatic increases in life expectancy among some Alaska Native communities to increased resource development, and called “people…in minority communities living longer…environmental justice in a huge way.” Sen. Capito, while acknowledging a more commonly understood definition of environmental justice as “somebody living next to a polluted area [without] the wherewithal or the money to be able to change that or clean it up,” then stated her view that “with joblessness comes an expanded environmental hazard,” and that communities with high unemployment rates “can be just as damaging to our environment in some ways as maybe a factory or a power plant.” The nominees responded to Capito by agreeing that it was important to focus on communities most affected by the energy transition.

Next up for the nominees is responding to written questions from committee members. Senators must submit written questions by March 10; the nominees must respond by March 17.

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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