Frozen! Delayed! Biden Administration to Review Environmental Regulations

Kilpatrick Townsend & Stockton LLP

Kilpatrick Townsend & Stockton LLP

Consistent with former administrations, the Biden administration took early actions to halt or review administrative regulations. One of the earliest administrative actions taken by the Biden administration was to freeze pending regulations. On January 24, Ron Klain, President Biden’s Chief of Staff, issued a memorandum withdrawing not-yet-published regulations and suspending published regulations that have not yet gone into effect. The memorandum delays the effective date of such regulations by 60 days to allow the new administration to determine if the regulation raises questions of fact, law or policy, and to identify future actions regarding such regulations. (See Regulatory Freeze Pending Review | The White House). The Trump administration issued a slew of regulations that are not yet final and that are good candidates for withdrawal or revision. Prime candidates for reversal or modification include:

Migratory Bird Treaty Act. The Interior Department has announced a delay to a rule that would eliminate penalties for the incidental or accidental take of migratory birds that was to go into effect on February 8. It is not anticipated that the rule will survive as it overturns years of precedent and standard practice regarding protection of migratory birds.

Greenhouse Gas Emission Control Limitations. A rule that effectively eliminates all industrial sectors other than the utility sector from the requirement to meet new greenhouse gas emission standards was finalized in the final two weeks of the Trump administration but is not scheduled to take effect until March 15, 2021. It is anticipated that this rule will be subject to additional public comment and revision.

Safe Drinking Water Act Lead and Copper Rule. Also finalized in the last two weeks of the Trump administration, the revised Lead and Copper Rule generated controversy over the extent of time provided to utilities to replace service lines. While the rule improved transparency and public education regarding concerns with lead and copper, the debate over the repair schedule may result in revisions of the rule.

Transparency in Science Rule and Clean Air Costs/Benefits Rule. As discussed in an earlier article, both of these rules were issued in the final weeks of the Trump administration as immediately-effective procedural rules. Both of these rules place limits on information that may be used to support regulations and were believed to be good candidates for reversal under the Congressional Review Act. Congressional Review Act – Too Many Priorities, Too Little Time A recent Montana district court ruling held that the Transparency in Science Rule was substantive, vacated the rule, and remanded it back to EPA, thus negating the need for CRA action. See Environmental Defense Fund v. EPA, No. 4:21-cv-00003-BMM (February 1, 2021). The CAA Costs/Benefits Rule may fall under a similar analysis.

The second action taken by the Biden administration to address the Trump-era regulations is to delay ongoing litigation. On January 21, 2021, EPA’s Acting General Counsel, sent a letter to the U.S. Department of Justice asking that the DOJ seek and obtain abeyance or stay of proceeding in pending litigation seeking judicial review of any EPA regulation promulgated between January 20, 2017 and January 20, 2021 in order to allow the new administration to review the underlying rule or matter. (See EPA Asks DOJ To Seek Stays Of Litigation Challenging Agency Rules | If a stay or abeyance is not feasible, DOJ is requested to seek extensions of time to allow EPA to reconsider its litigation position. There is an overwhelming amount of litigation currently ongoing regarding environmental actions of the Trump administration and it is difficult to predict the next steps for EPA as EPA reviews these cases. EPA is predicted to reverse its litigation position and commence rulemaking on a number of controversial rules:

Waters of the United States. The issue of what is and is not a navigable water subject to Clean Water Act protections has been debated for years. The Trump administration made an early move to replace the Obama-era Waters of the United States (WOTUS) rule with its own more restrictive rule, which went into effect in all states on June 22, 2020 (except Colorado). The Trump rule continues to be challenged in several courts across the country. The Biden EPA is likely attempt to expand the scope of waters considered Waters of the US and and perhaps reinstate part or all of the Obama-WOTUS rule, which is sure to be challenged as well.1

401 Certification Rule. This rule, which went into effect on July 13, 2020, puts limits on a State’s ability to challenge a Clean Water Act (CWA) project or permit through the 401 Certification process. Five lawsuits have been filed challenging the rule. The rule is likely to be rescinded. It is unclear whether the Biden administration will try to promulgate new rules in this space or revert to previous rules, which were promulgated in 1971.

National Environmental Policy Act Rules. Regulations that limit the scope of National Environmental Policy Act (NEPA) review went into effect on September 14, 2020 and are subject to ongoing litigation. Several industry groups argue that the NEPA regulations are cumbersome and warrant refining and streamlining, and have intervened in at least one lawsuit brought by environmental advocates to challenge the rule. In a blow to the request to delay the litigation, a district court in West Virginia recently sided with the environmental advocates and denied the request. Regardless of the ongoing litigation, it is anticipated that the Biden administration will seek to amend the regulations to incorporate evaluation of climate change impacts and may retain measures that are viewed as sound streamlining, especially as the Biden administration looks to get its infrastructure initiative off the ground and running.

Clean Air Act Rules. The Clean Air Act (CAA) rules subject to litigation are numerous and address a range of topics, including rules governing greenhouse gas emissions, relaxing of fuel economy standards, and the rescission of the California waiver that allowed California the ability to set more stringent fuel economy standards. It is expected that the Biden administration will take action on most of the CAA rules under litigation, focusing first on those directed at combatting climate change.2

Despite the tools for quick action on many regulatory fronts, many of the Biden initiatives will travel through Administrative Procedures Act notice and comment rulemaking. By design, notice and comment rulemaking is not fast – typically taking 12 to 18 months on the most accelerated schedule assuming no significant litigation. In the event that there is a judicial challenge, it could take another two to three years until a final regulation becomes effective. Most of the regulations identified above may eventually require revision or rescission through notice and comment rulemaking.

In conclusion, the regulatory train is moving quickly down the tracks to reverse the Trump administration’s environmental initiatives and rollbacks. While some changes may occur swiftly through Executive Orders and the reversing of guidance documents, other changes will take time as regulatory revisions and reversals move through the regular administrative process. All of this is overlaid by Biden’s imperatives to focus on climate change and environmental justice and how the costs and benefits of proposed regulations are assessed. It is imperative those subject to EPA regulations stay abreast of changes impacting their industry and make their voices heard early in the regulatory process.


1 On March 1, 2021, the 10th Circuit Court of Appeals denied the Biden Administrations request for a stay of litigation challenging a preliminary injunction of the Trump WOTUS rule and, the following day, issued an opinion vacating the preliminary injunction. See Colorado v. EPA, Nos. 20-1238, 20-1262, 20-1263 (Mar. 2, 2021). A number of federal district courts, however, have agreed to stay similar challenges of extend the briefing schedule.

2 Significantly, the Executive Order on Protecting Public Health and Restoring Science to Tackle the Climate Crisis directs EPA to consider publishing for notice and comment a proposed rule suspending, revising or rescinding Trump Administration rules in the following areas: Reducing Methane Emissions in the Oil and Gas Section; Establishing Ambitious, Job-Creating Fuel Economy Standards; Job-Creating Appliance- and Building-Efficiency Standards and Protecting Our Air from Harmful Pollution. The Biden Administration – Environmental Rollbacks, Reversals and Initiatives

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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