November 9, 2020
While the Election Day Week drama will likely continue to unfold in battleground state courtrooms for the foreseeable future, major news outlets have projected President-Elect Joe Biden as the winner of the 2020 Presidential election and examination of the next four years in the environmental arena in light of those projections is in order. It doesn’t take a crystal ball to predict that there are going to be a few changes in the new administration’s approach to environmental regulation. The Trump administration aggressively rolled back environmental regulations it deemed overly burdensome over the past four years and unraveled a number of high profile environmental actions of the Obama administration, including the 2015 Waters of the United States rulemaking and the joining of the Paris Agreement. President Trump also sought to decrease regulation more broadly through Executive Orders, and his administration rewrote the regulations that implement the National Environmental Policy Act (NEPA) to decrease the scope and length of NEPA review on large-scale federal projects. If there was a cohesive theme to Trump administration’s environmental policy, it could be summed up as “deregulation.”
The Biden Administration can reasonably be expected to at least attempt to rein in the rollbacks, and to add a few environmental priorities of his very own. This post examines a few of the campaign positions and promises of the Biden-Harris campaign to forecast what the environmental regulatory landscape of the next four years may look like.
- Climate Change: Unsurprisingly, this issue threads through virtually every aspect of the new administration’s environmental platform. Many commentators viewed the 2020 election in part as a referendum on climate change given the global consequences attributed to it and the diametrically opposes approaches taken by the two presidential campaigns. President Biden promised to recommit the U.S. to the Paris agreement on climate change and “[e]nsure the U.S. achieves a 100% clean energy economy and reaches net-zero emissions no later than 2050.” This promise will require incredible, economy-wide efforts. Some of these are touched on below, including the power sector issues and incentivizing carbon free personal vehicles and/or mass transit (a separate and complementary campaign promise) and the infrastructure to support both.
One interesting subplot to the Biden-Harris climate commitment is the promise that – through Executive Action – the administration will require “public companies to disclose climate risks and the greenhouse gas emissions in their operations and supply chains.” This promise follows the SEC’s failure in 2020 to modernize or tighten requirements for disclosure of climate change risk last addressed in 2010. If implemented in a meaningful fashion, this executive action will substantially increase the reporting burden on public companies, and likely up the pressure on a segment of private industry to move toward carbon neutrality. The demand for “green” investment is only increasing, and clear, standardized disclosure of GHG production and climate risk will unquestionably impact private investment decisions.
- Power Sector: The Biden campaign committed to “move ambitiously to generate clean, American-made electricity to achieve a carbon pollution-free power sector by 2035.” This would require increased investment in renewable energy technology, and potentially a revamped focus on nuclear energy production. The campaign specifically contemplates some investment in modular nuclear technology, which could potentially be deployed at a fraction of the cost of traditional nuclear power plants. The intricacies of increased nuclear investment post-Fukushima likely deserve their own dissertation, and can’t be covered adequately in this post. There is a high probability that we will see new tax credits to redirect capital to carbon neutral power generation, but don’t sleep on the possibility of a true federal carbon-tax or cap and trade initiative, as these mechanisms are gaining momentum outside the U.S. and have been implemented in a number of states.
- Infrastructure Investment: As part of the commitment to reaching climate change goals, the Biden campaign promised a $2 trillion accelerated investment in infrastructure, transit, power, construction, housing, and other sectors. The infrastructure investment specifically contemplates significant efforts in rebuilding bridges, roads, and water systems, investment in electricity grids, zero-emission public transit, and retrofitting millions of buildings for energy efficiency. Campaign promises are a long way from detailed construction plans, and it is hard to imagine a fraction of this being completed (or even substantially begun) in the first four years of a Biden Presidency under the old (pre-Trump administration) National Environmental Policy Act (NEPA) regulations. NEPA is the seminal environmental law which requires any federal action be examined for possible environmental impacts, and that those considerations be specifically documented. Under the pre-Trump NEPA regulations, an environmental impact statement for a major federal project could take four years to complete, and as long as seven to eight for federal highway projects. The Trump administration drastically revised the implementing regulations and created a presumptive two-year maximum for consideration of the most rigorous tier of NEPA projects. The Biden campaign vowed to roll back the Trump administration NEPA revisions if elected. It will be interesting to see how strenuous the roll back effort will be with such an ambitious platform for major projects aiming to benefit the environment and economy.
- Auto Industry/Auto Emissions: President-Elect Biden ran in part on promises to shore up the U.S. automobile industry, in part by using federal procurement to increase demand for American manufactured and sourced clean vehicles. He has also promised public investment in 500,000 electric vehicle charging stations to attempt to address the lack of infrastructure to support large scale electric vehicle use, and committed to goals that would see all U.S. manufactured buses be zero-emissions by 2030.
- Environmental Justice: A thread running throughout the Biden-Harris environmental platform is the promise that the government will focus increased attention on the environmental and health impacts of decisions on minority and low-income communities. President-Elect Biden promised to establish and Environmental and Climate Justice Division within the DOJ, add environmental justice staff to the White House Council on Environmental Quality, and to overhaul the EPA External Civil Rights Compliance Office. Additionally, the administration wants to add more pollution monitoring capabilities in frontline communities. While not stated overtly, it is reasonable to assume as part of the EJ efforts the Biden-era EPA will focus compliance and enforcement attention on permitted businesses emitting or discharging into communities of color.
A primary focus of the EJ platform is safe drinking water, and part of this initiative is designating per- and polyfluoroalkyl substances (PFAS) as a hazardous substance and setting enforceable drinking water limits. It is worth noting that the process of promulgating a maximum contaminant limit for PFAS began before the election, but designating PFAS compounds as hazardous substances would add significant protections and burdens.
Obviously, campaign promises are not the same as deliverables. The Biden-Harris environmental platform is among the most ambitious in the last 50 years, and the topics covered above just scratch the surface of what the administration hopes to achieve. Moreover, while many of the proposed executive actions would be clearly within his purview as President, the success or failure of many of the proposed legislative initiatives will turn on the still undetermined balance of power in the Senate. It is not yet clear how many of these goals might be accomplished in the next four years (or in the case of longer term goals, at all). What is clear is that 2021 will bring some rapid about-faces in environmental policy.