Environmental update

Environmental update

February 18, 2021 | By Andrew Skroback in New York

As President Biden’s appointees take their places and his nominees move through the Senate approval process, here is how the roster of key players on federal environmental and climate policy has shaped up:

Agency Heads

Biden nominated the secretary of the North Carolina Department of Environmental Quality, Michael Regan, to head the US Environmental Protection Agency.

Regan was an air-quality specialist who had served at EPA under both Presidents Clinton and George W. Bush. He later worked for the Environmental Defense Fund before being asked to lead North Carolina’s main environmental agency in 2017.

If confirmed, Mr. Regan will be the first Black man to lead the agency at a time when the Biden administration is expected to push for environmental justice.

Janet McCabe, who served as the acting assistant administrator for the office of air and radiation at EPA for much of the Obama administration, has been nominated for deputy administrator. While leading EPA’s air office, McCabe helped develop EPA’s now defunct Clean Power Plan.

President Biden nominated US Representative Deb Haaland (D-New Mexico) to be the new Secretary of the Interior. While she had served on the House’s Natural Resources Committee, Haaland was first elected to Congress in 2018. Before that, she was the chair of the Democratic party in New Mexico and oversaw business operations for a large tribal gaming enterprise.

During the presidential campaign, Biden promised to “transition away from the oil industry,” which he said will involve restricting new oil and gas permits on public lands that are overseen by Interior. Haaland would be at the head of Mr. Biden’s efforts to protect some of the 500 million acres of federal land that the Trump administration opened to construction, mining and logging activities.

Haaland is one of the few Native Americans elected to Congress and would be the first to head the US Department of the Interior. With both the Bureau of Indian Affairs and the Bureau of Indian Education falling within the agency, Interior also provides services to 1.9 million Native Americans and maintains the government’s relationship with more than 500 federally recognized tribes.

White House Trio

Biden chose Brenda Mallory to chair the White House Council on Environmental Quality, the group that Biden will use to try to shape and harmonize environmental policy across the new administration.

CEQ also oversees the implementation of the National Environmental Policy Act, or NEPA, which requires federal agencies to use environmental assessments and impact statements when making decisions related to any major development or infrastructure project that requires federal approvals.

Mallory served as the general counsel to the Council on Environmental Quality under Obama. Before that, she served in various roles at EPA over a 15-year tenure, including as the agency’s principal deputy general counsel. She resigned her position as director of regulatory policy at the Southern Environmental Law Center to accept the new position.

Former EPA Administrator Gina McCarthy will lead the White House Office of Domestic Climate Policy, a new high-level position with a key role in coordinating and driving climate policy across federal agencies.

McCarthy headed up EPA under the Obama administration and more recently led the Natural Resources Defense Council. 

As climate coordinator on the domestic front, McCarthy will advise the president and work with cabinet and other senior figures to coordinate work across EPA, Interior, the US Department of Energy and other federal agencies. She will also lead a push for legislative options for reducing greenhouse gas emissions and climate mitigation.

In a statement to the press, McCarthy said that tackling the climate crisis “is all about using the entire federal budget and the strength of the entire cabinet” to address climate concerns.

In addition to the new domestic coordination role that McCarthy will plan, Biden also created the new position of “presidential envoy on climate” to lead efforts “to combat the climate crisis and mobilize action” with emphasis on foreign coordination on climate issues. Biden tapped former US Secretary of State and US Senator John Kerry. The new presidential envoy on climate will be a member of the National Security Council.

Early Action

One early sea change from Trump to Biden will be in the area of environmental enforcement, with the new administration having already taken steps to remove barriers and ramp up environmental enforcement of federal environmental laws and regulations.

The nominee for EPA administrator, Michael Regan, is expected to follow his playbook in North Carolina by increasing inspections and penalties levied, at least compared to the level of enforcement activity under Trump.

EPA and the Department of Justice are expected to make environmental justice a central concern when bringing and settling enforcement actions and making agency decisions in rulemakings.

In his first executive order on climate change, Biden directed EPA and the Department of Justice to focus on environmental justice in their enforcement actions. A January 27 executive order on “Tackling the Climate Crisis at Home and Abroad” says that it is the Biden administration’s policy “to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.” 

EPA and the Department of Energy describe environmental justice as follows:

“the fair treatment and meaningful involvement of all people, regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies . . . . Fair treatment means that no population bears a disproportionate share of negative environmental consequences resulting from industrial, municipal, and commercial operations or from the execution of federal, state, and local laws; regulations; and policies.”

A number of top EPA regulators selected by Biden have broad experience with environmental justice issues, including the new nominee for EPA administrator. Biden also plans to create a White House Environmental Justice Interagency Council and a White House Environmental Justice Advisory Council to prioritize equity issues in all agencies.

A number of Trump-era limits on enforcement have already been scrapped.

DOJ rescinded nine environmental policy memoranda put in place under the prior administration, citing the need to give it a full range of enforcement discretion and arguing that the policies conflicted with President Biden’s executive order on protecting the environment.

Notable rescissions include the withdrawal of a recent memo limiting enforcement discretion and the repeal of a prohibition on using supplemental environmental projects, referred to as SEPs, in settlement agreements to resolve enforcement actions.

SEPs are environmentally beneficial projects funded by settling defendants in enforcement actions where the defendants agree to take actions that are usually beyond what a court could order based on the original violations to resolve the complaint. Pre-Trump, SEPs were commonly used to bring the regulated community into voluntary settlements by allowing defendants to offset civil penalties while fostering community goodwill. After withdrawal of the SEP ban, environmental groups moved to drop lawsuits challenging the ban.

The new administration also appears to have signaled a retreat from the prior administration’s opposition to citizen enforcement actions, at least under the Clean Air Act. DOJ recently decided not to appeal a settlement between a utility and the Sierra Club over alleged violations of the Clean Air Act’s new source review permitting program. The Trump administration had opposed the settlement.

Biden also moved to bolster the role of science in EPA and other agencies’ policies. A presidential memorandum directed agencies to “make evidence-based decisions guided by the best available science and data,” and a separate executive order re-established the Council of Advisors on Science and Technology, or PCAST. PCAST will advise the president on policy affecting science, technology and innovation, and on how science can inform policy decisions on a range of issues.


On climate, Biden’s initial executive orders have formalized a “whole-of-government” approach to addressing climate change. They direct the government to take multiple steps to tackle the issue, both domestically and abroad. They also make climate change a national security priority by directing the integration of climate into national security decisions.

The orders seek to “leverage the federal government’s footprint” by directing agencies to take various actions, such as procuring low-carbon goods and services, developing resiliency plans to offset climate impacts, eliminate fossil fuel subsidies if “consistent with applicable law,” and limit new oil and gas leasing on federal lands “to the extent possible,” subject to an exception for tribal lands.

The orders further set out the process by which the administration intends to create national greenhouse gas emissions targets under the Paris climate accord.

President Biden signed an executive order to have the US rejoin the Paris climate agreement as one of his first acts on inauguration day. The US officially withdrew from the accord late last year, after President Trump began the process in 2017. The US was the only country of the nearly 200 signatories to have withdrawn.

The 2015 agreement aims to avoid or limit the most significant climate change projections by keeping average global temperatures from rising by more than 2 degrees Celsius compared to pre-industrial times, with a preferred goal of less than 1.5 degrees Celsius by 2100. Global temperatures have already increased by a little more than one degree Celsius. The parties to the Paris accord were originally set to meet in Glasgow, Scotland in November 2020 to consider strengthening their emissions reduction targets, but the meeting was postponed for a year due to COVID-19.

Biden’s new climate orders direct federal agencies to ensure that every federal infrastructure investment “reduces climate pollution” while taking steps to accelerate clean energy and cleaner transmission projects.

As a candidate, Biden pledged to make significant reductions in greenhouse gas emissions from the US electricity sector, to drive the nation’s power grid toward net-zero carbon dioxide emissions by 2035 and to make the country carbon-neutral by 2050.

Carbon emissions from the electricity sector have been falling as utilities add renewable energy sources like wind and solar and as coal-burning plants continue to be retired, but the reductions are not enough to meet Paris targets for the US.

Biden will need Congressional help to advance his climate agenda. Senate Energy Committee Chairman Joe Manchin (D-West Virginia) will play an outsized role and as a moderate voice that will have to be brought along. Manchin called on Biden to commit to the production of natural gas for manufacturing and other domestic uses as part of a broader climate-change strategy.

In 2017, transportation overtook electricity generation as the largest source of greenhouse gas emissions in the US. Biden is expected to strengthen automobile emissions standards, but rulemaking in the area will take time.

In the meantime, expect the administration to try to make deals to reduce emissions from cars and trucks. Newly minted national climate adviser Gina McCarthy recently told the press that “we are having conversations with the car companies” as part of the administration’s broader effort to require greenhouse gas emission cuts from the transportation sector. Currently, those discussions appear to be on a company-by-company basis.

Biden is expected to address a joint session of Congress on February 23 in part to roll out more specifics to of his “build-back-better” agenda. Announcements related to federal investment in electronic vehicles and the required infrastructure for EVs are anticipated.

Clean Power

A federal court struck down one of the Trump administration’s key efforts to roll back climate regulation on January 19.

The court vacated and sent a Trump “affordable clean energy rule” — called ACE — back to EPA, allowing the incoming Biden administration to start from a blank slate for regulating emissions from the power sector. The expectation is that Biden will try to impose tougher limits on carbon dioxide pollution from power plants.

The court also vacated a separate EPA action extending compliance timelines for all rules issued under section 111(d) of the Clean Air Act, and it rejected a challenge to EPA’s underlying authority to regulate greenhouse gas emissions from power plants.

A split three-judge appeals court panel held that the “central operative terms” of the ACE rule “hinged on a fundamental misconstruction” of the Clean Air Act. 

The ACE rule focused solely on actions that can be taken on the particular power plant site to limit emissions without going beyond the fence line. The court said this is too narrow a construction of federal authority in this area.

It also said the extended compliance timeline in the ACE rule was “arbitrary and capricious.”

The one dissenting appeals court judge would also have struck down the ACE rule, but based on his view that EPA has no authority at all to regulate power plants under section 111 of the Clean Air Act — the authority that EPA cited for the ACE rule — because EPA already regulates hazardous air pollutant emissions from power plants under Section 112.

EPA adopted the ACE rule as a replacement for the Obama Clean Power Plan that tried to reduce greenhouse gas emissions across the power sector. The Clean Power Plan had its own problems. The US Supreme Court blocked implementation and EPA replaced it with the ACE rule after Trump took office.

Power companies may be feeling whiplash. The Biden administration is likely to use the ruling to justify replacing the ACE rule with something closer to the sector-wide regulatory approach taken in the Clean Power Plan. The administration is now effectively required to start over again. The rulemaking process required to draft a new EPA rule for power plant emissions will take time even if EPA has a template in mind.

A company or industry that supported the ACE rule in the litigation could ask the full US appeals court en banc or the US Supreme Court to review the decision to vacate the ACE rule and send it back to EPA, but the Biden administration will certainly not appeal. The Supreme Court never ruled on the merits of the Obama Clean Power Plan before Trump took office. It merely enjoined enforcement.

The case involving the ACE rule is American Lung Association v. EPA.

Migratory Birds

The US Fish and Wildlife Service finalized a rule on January 7, before Trump left office, that would limit when companies can be prosecuted for killing protected birds under the Migratory Bird Treaty Act of 1918, or MBTA, but the new rule is already in doubt.

The rule would restrict prosecution under the MBTA to intentional killings only. 

Thus, an “incidental take” of a protected species will no longer trigger potential prosecution as long as the rule stands. Incidental taking of birds can occur from such things as power lines and wind turbine strikes or oil spills or ponds containing hazardous materials.

The final rule says that “[l]imiting the range of actions prohibited by the MBTA to those that are directed at migratory birds will focus prosecutions on activities like hunting and trapping and exclude more attenuated conduct, such as lawful commercial activity, that unintentionally and indirectly results in the death of migratory birds.”

The US Department of the Interior had previously issued a policy memorandum promising not to prosecute companies or individuals who inadvertently harm protected birds and limiting prosecution to activities specifically meant to hurt or kill them. However, a federal judge overturned it in August 2020, calling Interior’s legal reasoning “unpersuasive.”

The new rule codifies the now-withdrawn 2017 memo.

The entry of the Biden administration has put the fate of the new rule in doubt. The US Fish and Wildlife Service froze the rule and formally reopened public comment on migratory bird protections. The new rule will now not take effect before March 8, 2021 at the earliest.

The Trump administration had asked a US appeals court to reinstate the 2017 policy memorandum, but the US government has now asked the appeals court to put that appeal “in abeyance.”

The incoming Interior secretary, Rep. Deb Haaland (D-New Mexico) sponsored a bill while in Congress that would reverse the Trump administration’s reinterpretation of the MBTA.

More than 1,000 species are protected by the MBTA.