When it comes to environmental policy and regulation, the United States has not seen a presidential transition between two more diametrically opposed administrations since…well, four years ago. The pendulum swing in 2017 from the Obama to the Trump administration is likely to be matched in magnitude by the 2021 shift from the Trump to the Biden administration. This cycle may well leave those individuals and entities subject to environmental regulations thirsting for some long-term stability above all else. Nevertheless, significant change is coming in the short term.
Whether you are a Mississippi municipality, manufacturer, developer, public or private utility, farmer, or any number of other regulated entities, it matters who sits in the White House and how the administration implements environmental laws and regulations. The new administration will have responsibility for the interpretation and enforcement of existing laws including the Clean Water Act, the Clean Air Act, and the Endangered Species Act, to name just a few.
Any devotee of Schoolhouse Rock knows a new law must start in Congress, pass both the House and the Senate, and be signed by the president (or have Congress override the president’s veto) before taking effect. That’s why significant changes in environmental law itself are unlikely in the short term. But through the EPA, Department of the Interior, Army Corps of Engineers, the U.S. Fish and Wildlife Service, and other agencies, the executive branch wields tremendous discretion not only on enforcement, but also on the promulgation of policies ranging from guidance documents to executive orders to regulations.
For today, we will look at how that discretion may play out and affect Mississippi regulated entities in the short term. Rulemakings, regulations, and any changes to existing laws may be on the horizon but will not take effect in the immediate future. But the Biden administration will exert its influence quickly when it comes to enforcement discretion, executive orders, and informal agency guidance.
With respect to enforcement actions, regulated entities should expect an uptick in frequency almost immediately and a significant increase in the medium term. This expectation arises in part from the simple fact that the Trump EPA conducted the fewest enforcement actions and compliance checks of any administration since statistics began being kept in the 1990s. Even a return to the mean would be a significant increase. But the Biden administration should be expected to increase its enforcement actions to an above-average level given his campaign’s emphasis on environmental issues. Enforcement actions and compliance checks are entirely within the agency’s discretion, so within a matter of weeks the Biden EPA should be expected to look significantly different from the EPA of the last four years.
On a national level, then, the EPA in particular (and the federal government in general) is likely to acquire a more hands-on role in regulatory enforcement than has been the case for the past four years. The Trump EPA’s mantra was “cooperative federalism,” a policy by which the federal government left the lion’s share of enforcement and compliance checks in most areas to the states. That effectively meant EPA sought to serve in a background support role for state agencies. However, certain recent conditions specific to Mississippi have already led the EPA to a comparatively greater degree of involvement in Mississippi enforcement actions than in prior years. The Biden EPA is likely to work directly with the Mississippi Department of Environmental Quality (“MDEQ”) on even more compliance and enforcement actions.
On the policy side, the Biden administration can be expected to undo as many of the Trump administration’s changes to environmental policy as it can, as quickly as it can. The simplest reversals will be those of executive orders, which by their nature are within the sole discretion of the president. The Biden administration should be expected to revoke E.O. 13771, which seeks to have federal agencies eliminate two existing regulations for every new regulation promulgated. Other executive orders dealing with the environment are likely to be revoked but E.O. 13771 has the most direct impact on Mississippi regulated entities.
Finally, the Biden EPA will also set to work almost immediately replacing certain policy and guidance documents. One recent example is the EPA’s guidance on implementation of the Supreme Court’s 2020 decision regarding groundwater in County of Maui v. Hawaii Wildlife Fund. In that opinion, the Court held the Clean Water Act is applicable to discharges into groundwater in certain circumstances. The EPA’s recent guidance document narrowly interprets the Court’s test for when the Act is applicable in such situations. The Court’s opinion, however, is fairly subject to a broader interpretation and the new administration should be expected to replace the recent guidance with just such a broader one. Other similarly broadening changes to guidance documents should be expected in the coming months.
In the medium and long term, the Biden administration is expected to pursue regulations emphasizing Environmental Justice, expanding the definition of “Waters of the United States” under the Clean Water Act, new source standards for air emissions, reverting to pre-Trump rules regarding the Endangered Species Act and automobile emissions, and more broad policy goals. But for the immediate future, regulated entities should be prepared for an increased federal focus on enforcement actions and compliance checks, and for existing rules and regulations to be interpreted and enforced more stringently.
Whenever the White House and other levers of governmental power change hands, significant policy shifts are to be expected. For those in the environmental regulated community, the experience may be more akin to whiplash. Staying informed as the new administration implements its agenda is the best way to minimize the impact.
» W. ABRAM ORLANSKY is an environmental attorney at Watkins & Eager PLLC. Abram earned a B.A. in Government and History from the University of Texas and Juris Doctor from Harvard Law School. Prior to joining Watkins & Eager in 2013, Abram served as a law clerk to The Honorable Rhesa H. Barksdale, United States Court of Appeals for the Fifth Circuit. Abram can be contacted at email@example.com.