Published in New Hampshire Business Review (5/20/21)
On his first day in office, President Biden issued Executive Order 13990 entitled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (EO). The EO advanced the President’s campaign promise to prioritize progress on climate change, environmental, and energy policies. The first step toward this objective was to undo most, if not all, of the related regulatory initiatives of the Trump Administration in the last four years. The EO directed federal agencies to review immediately every federal regulation and executive order issued during the Trump presidency – literally hundreds of agency actions – and to suspend or revoke numerous Trump administration executive orders.
President Biden’s EO marked a clear philosophical departure from the policies of the prior administration; perhaps best illustrated by its use of the phrase “listening to science;” a reflection of the criticism that the prior administration placed political considerations ahead of scientific evidence and advice. This is evident in the new administration’s emphasis on two issues: addressing the effects of climate change and prioritizing environmental justice (EJ) initiatives, including increased enforcement of environmental non-compliance.
Enforcement of Environmental Violations
As we approach the end of President Biden’s first 100 days in office, regulated industries should expect and prepare for wide ranging developments across all areas of environmental law. In particular, businesses should anticipate an increase in enforcement actions for environmental violations, which had significantly declined under the Trump Administration.
All businesses, but especially those near EJ communities, should review their compliance status. Effective environmental self-audit programs are particularly valuable, and should be adjusted as necessary to withstand potentially reformed enforcement scrutiny. Environmental self-audit programs permit early discovery and correction of non-compliance, and are the basis for self-reporting that can reduce related, potential penalties. Similarly, a compliance history review is another prudent measure to undertake since a company’s compliance history may be factored into enforcement decisions. Of course, companies that discover noncompliance should take immediate corrective action and, if appropriate, with competent professional advice and assistance, voluntarily self-report to the appropriate agency. Doing so in accordance with applicable regulatory policies can reduce or even eliminate potential civil penalties and potentially avoid more serious consequences.
As near daily headlines proclaim, the Biden Administration is already implementing its climate change policies more consistently with all the other large industrial economies in the world. For their part, businesses must focus on planning and assessment of their climate based risks, the potential effects of climate change on their facilities and operations, including supply chains, and regulatory changes likely to affect their financial disclosure obligations. Measures will be necessary to mitigate the effects of more severe storms, increased and more frequent flooding and sea level rise.
To slow the rate of climate change, President Biden recently pledged to reduce the United States’ emissions by 50% by 2030, based on 2005 levels - an undeniably ambitious and important target. Even this will not be enough, and it is critical that the methods selected are entirely consistent with achieving the Biden Administration’s goal of 100% reduction by 2050. The President has not announced how his administration will accomplish this significant task, but it will almost certainly involve a multi-faceted approach involving all sectors of the economy and likely the invention and deployment of new technologies.
One such initiative will likely involve a reformulation of the Obama-era Clean Power Plan (CPP), that required states to take steps to reduce CO2 emissions from power plants. Implementation of the CPP was stayed by the United States Supreme Court pending resolution of legal challenges to the rule. Those challenges have not been fully resolved, but a recent ruling by the D.C. Circuit Court of Appeals (American Lung Association v. E.P.A.) seems to have brought the CPP back to life. The EPA, however, is unlikely to re-implement the CPP in its original form. Rather, the EPA appears poised to develop different regulations more in line with the Biden Administration’s climate goal and policies. Or EPA could designate greenhouse gas emissions as criteria pollutants subject to National Ambient Air Quality Standards.
The return to regulation based on sound science, and the increasingly harsh effects of climate change will doubtlessly require entirely new methods of informed planning and adaptation by business in the United States and around the globe. Businesses should track developments in the law closely and assess how they may impact your operations.
Viggo Fish is an Environmental and Energy Associate at McLane Middleton. He can be reached at (603) 230-4412 or [email protected].