Environmental Priorities and Regulation Under the Biden Administration

Michael J. Quinn
Director, Administrative Law and Litigation Departments and Managing Director Portsmouth Office
Published: Portsmouth Herald
June 27, 2021

How will environmental regulation change under the new Administration?  What is Environmental Justice?  Is my business more likely to be inspected by the State or federal government than a year ago? How should I prepare for changes to come? All good questions, and some answers are available if you know where to look.

Anyone with an interest in alterations the Biden administration is making to environmental regulation was given a tool on January 21, 2021 when Executive Order (“EO”) 13,990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, was issued. The EO sets out the new administration’s policy priorities, including identifying policies of the prior administration that it intends to change if not abandon.

As a threshold, the EO explains that executive agencies are directed to evaluate policies and agency actions under the Trump administration to identify inconsistencies with Biden administration environmental policies, and to consider suspending, revising, or voiding those prior policies and actions. The EO also immediately rescinds a number of executive orders and executive agency policy relating to the environment issued during the Trump administration.

Several goals called for in the EO have already been implemented.  For example, the EO required the Interior Department to place a temporary moratorium on oil and gas leasing in the Arctic National Wildlife Refuge (“ANWR”). On June 1, Interior announced it had “identified defects in the underlying record of decision supporting the leases, including the lack of analysis of a reasonable range of alternatives,” and so was suspending ANWR oil and gas leases, pending a fresh environmental review. This decision is being challenged in court.

The EO calls for revocation of the permit granted for construction and operation of the Keystone XL pipeline intended to transport petroleum from Canadian tar sands fields to the U.S.  On June 9, the Canadian firm that intended to build the pipeline announced that it was terminating the project.

Other high profile issues relating to climate change, greenhouse gases, vehicle fuel economy standards, Bears Ears and the Grand Staircase National Monuments, are specifically identified in the January 20 EO for immediate review.

The EO acknowledges that changes in environmental priorities or regulation may immediately affect pending litigation. Consequently, the EO provides that if appropriate in pending federal cases, the Justice Department is authorized to provide notice to the court of actions taken pursuant to the EO and to request the court stay or dispose of that litigation.

There are numerous other actions disclosed in the EO that may not attract the same level of popular press attention but that advocacy groups, the regulated community, and environmental practitioners are watching closely.