Joseph R. Biden Jr.’s inauguration on January 20, 2021 as the forty-sixth President of the United States could usher in a sweeping period of environmental regulatory changes vastly eclipsing those of his immediate predecessor – and perhaps even those of President Barack Obama. Further, with key Senate victories in January by Jon Ossoff and Raphael Warnock in Georgia, a Democrat-controlled Congress is better situated to help the President-elect achieve the environmental goals he’s promised would be a focus of his administration.
Regulated industries can expect the new administration to consider action on climate change, environmental justice, chemicals regulation, wetlands/waters of the United States, and endangered & threatened species. Although some of these actions may be complex, look for key Trump administration rules to be rolled back and replaced and new rules and legislation to be proposed. Below we provide a brief overview of key environmental policy initiatives poised for action under a Biden administration:
We expect the Biden administration will revive and strengthen efforts to infuse the concept of “environmental justice” across federal agencies, but particularly the EPA. Michael Regan, Biden’s nominee to lead EPA, created an Environmental Justice and Equity Board during his time as Secretary of the North Carolina Department of Environmental Quality, which (among other things) created a community mapping system that the NCDEQ uses to inform agency decisions by considering demographic and health information – and which could serve as a model for EPA decision-making.
Relatedly, the Biden administration may withdraw the Department of Justice’s current prohibition on Supplemental Environmental Projects (“SEPs”) – voluntary projects with environmental or public health benefits which were previously used as a component of enforcement settlement actions. Nixed by the Trump DOJ due to administrative cost concerns, the Obama-led DOJ considered SEPs to be a valuable compliance tool, because they often have a public accountability component (e.g., installation of air monitors near a school, with results made available to the public). We expect to see SEPs return as a component of EPA settlements in 2021.
Under the Trump Administration, the EPA took initial steps toward regulating the class of emerging chemicals referred to as per- or polyfluoroalkyl substances (or “PFAS”), creating a “PFAS Action Plan” that EPA was then criticized for not implementing fast enough. Meanwhile, states have moved with varying speed to promulgate binding standards for certain PFAS, creating a regulatory patchwork.
We expect federal regulatory efforts will move more swiftly under the Biden administration. Key among EPA’s expected efforts may be the listing of certain PFAS as “hazardous substances” under CERCLA, thereby establishing a mechanism for private parties to recoup cleanup costs and provide for EPA oversight through CERCLA. EPA will likely also move more swiftly to promulgate Safe Drinking Water Act standards for key PFAS, as well as using its authority under TSCA to obtain additional information about possible PFAS sources and considering potential additional use restrictions.
The ongoing COVID-19 pandemic has been a stress test for EPA’s approval process for pesticides and pesticide devices pursuant to FIFRA, as manufacturers rushed to market cleaning and disinfecting products with COVID-effectiveness claims. In early 2020, EPA established a protocol for products already FIFRA-approved to make COVID-19 claims, and the agency subsequently expedited its review of emerging viral pathogen claims by approved process. Nonetheless, manufacturers of pesticides and pesticide devices have expressed frustration about EPA’s timeline for FIFRA approvals. At the same time, EPA has not relaxed its enforcement efforts against products that violate FIFRA.
This regulatory logjam presents a potential opportunity for new FIFRA rulemaking to streamline approval efforts – perhaps in the mold of FDA’s approach to consumer hand sanitizers – although EPA has not proposed anything concrete at this time. Meanwhile, we expect EPA’s heightened enforcement efforts to continue at least through 2021, as the pandemic continues.