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November 9, 2020

Post-Election Analysis 2020: Energy & Environment


*Updated January 6, 2021

Key Takeaways

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  • With control of both the White House and Congress for the first time in a decade, Democrats will take swift action to address climate change. President-elect Biden proposed a $2 trillion climate plan that aims to achieve a carbon pollution-free power sector by 2035 and net-zero emissions economy-wide by 2050. The Biden Administration will lead the way through regulatory, policy, and enforcement actions, but agency leaders will have willing partners on Capitol Hill with Democratic leaders eager to address climate objectives that were not possible in the divided 116th Congress.
  • The Biden Administration is expected to reverse Trump-era policies that emphasized deregulation. For example, President-elect Biden is expected to revoke President Trump's executive orders affecting energy and the environment and to direct his administration to repeal certain changes to National Environmental Policy Act (NEPA) regulations and to the definition of "waters of the United States."
  • To support these goals, Democrats likely will push for comprehensive environmental legislation that includes significant investments in transitioning the electric grid to clean energy, repairing and replacing drinking water infrastructure, and building the infrastructure necessary to electrify the transportation system. Many of these issues are seen as elements of a sustainable recovery from the coronavirus pandemic that are protective of public health. In addition, Democrats will begin to push broader policy changes, such as removing subsidies for the traditional fossil fuel industry and implementing a price on carbon pollution. However, some of these policies could still be seen as too progressive to get the necessary amount of support, even if Democrats change filibuster rules in the Senate.

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Read Ahead: Climate Change and the Power Sector | Permitting and Infrastructure | Surface Transportation | Drinking Water | Chemicals Regulation | Environmental Justice | Regulatory Rollback


President-elect Biden will depart radically from the Trump Administration's energy and environmental agenda, especially with the support of the Democratic Congress. He has already elevated climate change to one of the top four priorities for his administration. Climate change policy also likely will top the agenda of congressional Democrats. Nonetheless, there are many nuances in the proposed paths forward in terms of ambition, timing, scope, and approach that leave much to be resolved.

During the campaign, President-elect Biden touted a $2 trillion climate plan that aims to achieve net-zero emissions, economy-wide, by 2050 with ambitious interim targets for the power, transportation, and building sectors. His platform connects the need to reduce emissions and pollution with reducing the negative health impacts from the coronavirus, especially respiratory symptoms. With the support of the Democratically-controlled Congress, the Biden Administration likely will take action to reverse Trump-era, deregulatory policies that some stakeholders criticized for not being protective of human health and the environment. For example, President-elect Biden is expected to revoke executive orders issued by President Trump that affect energy and the environment, such as President Trump's executive order encouraging energy exploration and production on the Outer Continental Shelf. The administration may also reverse at least some of the Trump Administration's revisions to the NEPA regulations and to the definition of "waters of the United States." In addition, the Environmental Protection Agency (EPA) may take more aggressive action to regulate certain chemicals, such as per- and polyfluoroalkyl substances (PFAS) and asbestos. Congress may use the Congressional Review Act's "look back" period to strike down regulations finalized late in President Trump's time in office.

The incoming Biden Administration is anticipated to depart from the Trump Administration's approach to permitting and enforcement. Whereas the Trump Administration prioritized swift permitting for natural resource development projects on federal lands, including those for traditional fossil fuel projects, President-elect Biden likely is to prioritize more extensive environmental review procedures and to encourage the growth of renewable energy projects. Regarding enforcement, there was a noticeable decrease in enforcement activity and in the penalties assessed under President Trump. That trend should turn around under the Biden Administration with increasing levels of enforcement. The Biden Administration also will put increasing attention on environmental justice issues.

Similar to President-elect Biden, the Democratic Congress will prioritize climate change legislation consistent with the June 2020 plan released by Democrats on the House Select Committee on the Climate Crisis and the August 2020 climate plan released by the Senate Special Committee on the Climate Crisis. However, even if the Senate eliminates the legislative filibuster, the Democrats' narrow majority will mean major climate legislation likely will still require bipartisan support. More ambitious initiatives, especially those eliminating oil and gas leasing on federal lands or phasing out fossil fuel tax incentives, are not expected to advance. Bipartisan initiatives, such as a surface transportation, energy efficiency, or research and development bill, may garner enough support in Congress, as evidenced by the inclusion of the Energy Act of 2020 in the FY 2021 omnibus spending bill, which passed at the end of the last Congress. In general, congressional Democrats are expected to pursue their priorities, especially to make significant investments in clean energy deployment, electrify transportation, and repair and replace drinking water infrastructure. With or without a Senate filibuster rule change, much of the burden will fall on the Biden Administration to advance climate and environmental goals through executive branch activity.

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Climate Change and the Power Sector

Addressing climate change at the federal level will be one of the top priorities of both President-elect Biden and the Democratic Congress. In the last several years, a growing number of states and businesses alike have committed to achieve stronger emissions reduction targets to address the impact of climate change. At least 30 states have adopted a Renewable Portfolio Standard, and numerous companies have made net-zero emissions pledges. President-elect Biden similarly committed to put the US on a path to achieve net-zero emissions, economy-wide, by 2050, and a carbon pollution-free power sector by 2035.

The President-elect will rely on executive authority and has selected a slate of climate-focused cabinet nominees and senior White House staff to achieve policy objectives for carbon reduction and clean energy deployment. In particular, President-elect Biden has elevated climate change to the top positions in his domestic and national security staff, selecting former Secretary of State John Kerry as the Special Presidential Envoy for Climate, who will sit on the National Security Council; former EPA Administrator Gina McCarthy as the domestic White House climate policy coordinator; Brenda Mallory as the chair of the Council on Environmental Quality; and Brian Deese as the director of the National Economic Council. Within his cabinet, President-elect Biden will nominate Michael Regan for EPA Administrator, former Michigan Governor Jennifer Granholm to be the Secretary of Energy, former Representative Deb Haaland for Secretary of the Interior, and former Mayor Pete Buttigieg as the Secretary of Transportation. Many of his picks are Obama Administration alums and will be well-prepared to execute on a climate agenda starting on the first day of the administration.

The Biden Administration will use existing authority as expansively as allowable to achieve the President-elect's campaign goals. In addition to rejoining the Paris Agreement, President-elect Biden is expected to revoke President Trump's executive orders that affect energy and the environment, such as his order revoking President Obama's Executive Order 13693, which set a goal of cutting the federal government's greenhouse gas emissions by 40 percent over ten years. The President-elect likely will issue new executive orders reestablishing a federal commitment to reducing greenhouse gas emissions and restricting oil and gas leasing on federal lands. President-elect Biden also announced his intention to establish ARPA-C, a cross-agency Advanced Research Projects Agency focused on climate solutions. In addition, President-elect Biden pledged to use the federal government procurement system to drive towards 100 percent clean energy and zero-emissions vehicles and to ban new oil and gas permitting on public lands and waters. The administration likely will initiate rulemakings to amend the Department of Energy's energy efficiency standards for buildings and appliances; to revise the social cost of carbon, which was greatly reduced under President Trump; and to renew a version of the Obama Administration's Clean Power Plan. However, the administration likely will face legal challenges from Republican states and some regulated industries, as was the case with the original Clean Power Plan.

At the Federal Energy Regulatory Commission (FERC), we expect President-elect Biden to appoint a Democratic Chairman; however, given the recent confirmations of Allison Clements and Mark Christie, the Commission will remain majority Republican until Commissioner Neil Chatterjee resigns or his term ends in June 2021. By filling Commissioner Chatterjee's seat with a Democrat, President-elect Biden will tip the Commission's scales in favor of policies such as developing a long-range transmission infrastructure strategy for a growing clean energy power sector and using FERC's existing authority to allow regional or state electricity markets to add a carbon price to wholesale electricity rates. In fact, near the end of the Trump Administration, FERC expressed potential interest in the latter topic by proposing a policy statement that regional market rules incorporating a state-determined carbon price can fall within the Commission's jurisdiction over wholesale rates, following a technical conference on carbon pricing. FERC is also expected to accommodate and facilitate renewable energy growth and treat with greater skepticism applications for new natural gas pipelines and liquefied natural gas terminals.

In addition, FERC likely will increase its energy-related enforcement activity. For context, to date in 2020, FERC has imposed civil penalties totaling $2.2 million. While it imposed civil penalties totaling $18.5 million in 2019, this stands in stark contrast to the nearly $300 million in civil penalties that FERC imposed across ten cases in 2016 alone. Under the Biden Administration, FERC likely will revert to the aggressive approach to enforcement seen during the Obama Administration.

President-elect Biden's plan to decarbonize the power sector aligns in several ways with recommendations released by Democrats on the House Select Committee on the Climate Crisis and Senate Special Committee on the Climate Crisis, which reflect congressional Democratic leaders' policy priorities for carbon reduction. In particular, all three plans call for: (1) a national clean energy standard to achieve net-zero emissions in the coming decades; (2) incentivizing the improved energy efficiency of homes and buildings; (3) designing market incentives, such as tax breaks, to spur the growth of clean energy while requiring entities to bear the cost of externalities; and (4) investing in research, development, and deployment of advanced technologies, especially carbon capture and sequestration (CCS) technology in hard-to-abate sectors of the economy.

With Vice President-elect Harris as the tiebreaking vote in the Senate, the new Democratic Congress likely will give the Biden Administration room to pursue these clean energy policies and use legislation both to complement and ensure the long-term viability of those efforts. Democrats may choose to eliminate the Senate legislative filibuster, but, even with the rule change, their narrow majority means ambitious climate legislation, such as the INVEST in America Act (H.R. 2), may not obtain enough moderate Democratic support to pass. Without a 60-member Democratic majority in the Senate, bolder policies may face obstacles to enactment.

Whether the Senate changes its filibuster rules, lawmakers can still succeed in advancing bipartisan legislation to reduce carbon emissions, as was the case at the end of December 2020. Originally sponsored by Sens. Lisa Murkowski (R-AK) and Joe Manchin (D-WV), the Energy Act of 2020 was attached to the recently enacted FY 2021 omnibus spending bill (H.R. 133). While the Act neither includes clean energy tax extensions nor does it set carbon emission reduction targets, it includes other climate priorities such as a multi-year phasedown of hydrofluorocarbons and authorization of significant investments in solar and wind power improvements, energy storage, and grid modernization. In addition, it includes extensions for clean energy tax credits. The Act's passage demonstrates the kinds of climate legislation possible in Congress. Given the role climate change played in elections across the nation, both chambers and parties can be expected to pursue more opportunities for bipartisan initiatives, such as including climate in the surface transportation reauthorization bill and in infrastructure legislation.

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Permitting and Infrastructure

The Biden Administration committed to significant investments in infrastructure in the transportation, electricity, and building sectors to create jobs, lay the foundation for a clean energy future, and prepare for the impacts of climate change. In contrast to the Trump Administration's focus on cutting regulatory requirements to facilitate faster infrastructure deployment, President-elect Biden expressed his intention to reinstate robust environmental review, especially for fossil fuel-related projects, and permitting requirements to ensure infrastructure development is sustainable. Most immediately, President-elect Biden committed to taking executive action requiring all federal infrastructure investments to reduce climate pollution and all federal permitting decisions to consider the effects of greenhouse gas emissions and climate change. Through exercise of those permitting authorities and changes to litigation strategies, the Biden Administration also will have the opportunity to influence the outcome of controversial major infrastructure projects, such as the Keystone XL Pipeline, the Dakota Access Pipeline, and the Pebble Mine.

A Democratic Congress will be able to accelerate the Biden Administration's environmental review and permitting regulatory agenda by exercising its authority under the Congressional Review Act to repeal those rulemakings that fall into the "look back" period. A number of key Trump Administration rulemakings could be subject to repeal, including the Council on Environmental Quality's major overhaul of the NEPA implementing regulations and the EPA's reinterpretation of the scope of State Water Quality Certifications under Section 401 of the Clean Water Act, among others.

Congress also may pursue reforms related to fossil fuel infrastructure permitting, including: (1) amending the Natural Gas Act to require pipeline developers to obtain all permits before condemning and disturbing lands; (2) requiring FERC and the Department of Energy to consider climate change in approvals of liquified natural gas import and export infrastructure; and (3) eliminating exemptions for the oil and gas industry in the Clean Air Act, Clean Water Act, and the Resource Conservation and Recovery Act. While some policies may enjoy enough bipartisan support to be enacted, bolder Democratic priorities, especially eliminating exemptions for the oil and gas industry, likely will not advance to the President-elect's desk unless the Senate changes the rules for the legislative filibuster.

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Surface Transportation

The incoming administration will work closely with the Democratic Congress to quickly assemble an infrastructure package that includes robust investment incentives for clean transportation programs. On the campaign trail, President-elect Biden laid out a $2 trillion infrastructure plan, which included "transforming our crumbling transportation infrastructure." As part of his transportation plan, President-elect Biden has committed to: (1) positioning the US to be the global leader in the manufacture of electric vehicles (EVs) and their input materials and parts; (2) making investments in vehicle infrastructure, including 500,000 electric vehicle charging stations; (3) using the power of federal procurement to purchase clean vehicles for federal, state, tribal, postal, and local fleets; (4) setting a goal to convert all 500,000 school buses in the country to zero-emission vehicles; and (5) establishing ambitious fuel economy standards. President-elect Biden has also pledged to promote and advance renewable energy, ethanol, and other biofuels, with a particular commitment to investing in the next generation of biofuels.

Democratic control of Congress gives President-elect Biden a base of support to achieve these goals and allows him to build on Democratic proposals from the 116th Congress. However, levying adequate funding for surface transportation programs has proved politically challenging, in part, because of a widening shortfall in revenues. The bulk of revenues for federal transportation programs (and for many state programs) come from excise taxes levied on fuels, which have not been raised since 1993 and have been severely curtailed by the economic crisis created by the coronavirus pandemic. Addressing the Highway Trust Fund shortfall and the September 2021 expiration of the FAST Act authorities will be a near-term priority for Congress. The House, however, under a change in rules for the 117th Congress, has waived the requirement to offset the spending of legislation "to prevent, prepare for, or respond to economic, environmental, or public health consequences resulting from climate change." Given an infrastructure package is the most likely vehicle to carry comprehensive climate legislation, this rules change may ease the funding dilemma.

Both chambers of Congress made progress regarding a five-year surface transportation reauthorization in 2020 but failed to find a bicameral solution. In the Senate, former Chairman John Barrasso (R-WY) led the Environment and Public Works Committee to unanimously pass a $287 billion, five-year reauthorization (S. 2302) package that included a climate change title for the first time in Senate history. In the House, Chairman Peter DeFazio's (D-OR) Transportation and Infrastructure Committee developed a largely partisan $494 billion, five-year authorization (H.R. 2) that passed the House in July, which likewise included significant new investments in climate change programs. The two bills included several similar provisions, including an annual grant program for EV charging and low-carbon fueling infrastructure. Even with Democrats in control of both chambers next year, the surface transportation reauthorization has historically been an opportunity for bipartisanship, and the new top Republican in the Environment and Public Works Committee, Sen. Shelley Moore Capito (R-WV), may be a willing partner for Democrats. Regardless, the incoming Biden Administration will have sufficient time to negotiate a bicameral solution that addresses climate objectives and the funding shortfall.

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Drinking Water

Protecting the nation's drinking water will be a major priority for Congress and the new administration in 2021, and will represent an issue where congressional leaders in both parties may find common ground with the President-elect, who focused on strengthening regulatory protections and repairing infrastructure extensively during his campaign. With Michael Regan, who is a former North Carolina environmental regulator, at the helm of the EPA, the Biden Administration is expected to tackle drinking water contamination aggressively. During his campaign, the President-elect committed to "tackle water pollution in a science-based manner" and called for "historic investments across federal agencies aimed at eliminating legacy pollution" by: (1) repairing water pipelines and sewer systems; (2) replacing lead service pipes; (3) upgrading treatment plants; and (4) integrating efficiency and water quality monitoring technologies. While paying for some of these priorities will be a challenge, President-elect Biden's priorities represent more of an evolution from the Trump Administration's focus and should find at least some common ground with Republican congressional leaders, which could lead to bipartisan congressional action.

Drinking Water Regulations: President-elect Biden plans to "accelerate the process to test for and address the presence of lead in drinking water and housing" and to "help protect rural communities from water and air pollution and make water bills affordable." To achieve these goals, the Biden Administration likely will attempt to repeal and replace Trump-era regulations that loosened drinking water protections, including rules drastically reducing the scope of the definition of "waters of the United States," which governs the federal government's Clean Water Act (CWA) permitting jurisdiction. (This is an area where protracted litigation is especially likely.) The administration may also reverse the Trump Administration's summer 2020 rollback of the coal ash discharge rule, which was aimed at protecting drinking water supplies from waste from coal-fired power plants. The administration likely will face numerous legal challenges to its actions. However, the Democratic Congress could use the Congressional Review Act to repeal the rules finalized late in President Trump's term, giving the Biden Administration more room to promulgate stronger drinking water protections.

Infrastructure: Even during the coronavirus pandemic, both chambers of the 116th Congress continued to develop and advance bipartisan drinking water infrastructure legislation. The two chambers developed their own versions of the biennial Water Resources Development Act (WRDA) throughout 2020. These bills authorize funding for the civil works program of the Army Corps of Engineers and invest in the nation's water infrastructure, including ports, harbors, and inland waterways. In December 2020, the bill was included in the FY 2021 Consolidated Appropriations Act (H.R. 133), which was enacted late December 2020. The Act emphasizes improving US water resources infrastructure by authorizing the study and construction of Corps projects; investing in the nation's ports, harbors, and inland waterways, including through the Harbor Maintenance Trust Fund; building more resilient communities to mitigate risks from floods and other natural disasters; increasing the Corps' coordination with communities, including minority communities and tribal groups; addressing the water resources needs of communities, especially those vulnerable to flooding and storm damage; and promoting economic and environmental responsibility. Given Congress's history of passing WRDA every two years, the 117th Congress is expected to begin developing a new WRDA for 2022, which may include goals from President-elect Biden's Build Back Better infrastructure plan.

PFAS: Congress and the new administration will almost certainly continue efforts to regulate PFAS. Rep. Debbie Dingell (D-MI) has already announced she will re-introduce the PFAS Action Act (H.R. 535), a comprehensive PFAS contamination bill which stalled after passing the House in January 2020. The PFAS Action Act would, among other things, require EPA to make hazardous substance determinations under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) on all PFAS within five years, and limit the introduction of new PFAS chemicals into commerce. However, Republicans have generally viewed the PFAS Action Act as too sweeping and prefer to address PFAS individually after thorough study. Without a 60-member majority in the Senate, Democrats may struggle to pass broad PFAS legislation. If the Democratic Senate abolishes the filibuster, PFAS legislation is more likely to move forward. In either case, much will be left to the Biden Administration to act under various environmental laws to monitor and regulate PFAS.

The Biden Administration is expected to accelerate rulemakings started under the Trump Administration for addressing PFAS under the Safe Drinking Water Act, CERCLA, the Clean Water Act, and more. In addition, while Michael Regan, who the President-elect nominated to serve as the administrator of the EPA, was North Carolina's top environmental regulator, the state was the center of a national fight over PFAS. Regan led an aggressive response to PFAS in his state, and may similarly prioritize addressing PFAS contamination during his tenure.

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Chemicals Regulation

Democrats have been critical of the Trump Administration's decision not to ban certain chemicals. With Democratic control of both the White House and Congress, Congress and the administration likely will re-examine many of these decisions. Under President Trump, the EPA declined to ban use of the pesticide chlorpyrifos, which the Obama Administration proposed to ban in 2015. The Trump Administration decided not to impose a ban. Similarly, under the Trump Administration, the EPA issued a prohibition on methylene chloride that only covered certain consumer uses, delayed consideration of a proposed ban on certain uses of trichloroethylene, and initially elected not to consider legacy uses in its risk evaluation of asbestos. Under new leadership, the EPA is expected to revisit many, if not all, of these recent decisions.

Democrats in Congress have introduced legislation to reverse some of these Trump-era decisions, and the legislation may be revived in the new Congress. For example, Sen. Tom Udall (D-NM) introduced legislation to ban chlorpyrifos in 2019 (S. 921), but the bill never advanced out of committee. Although Sen. Udall retired after the last Congress, one of the bill's 16 co-sponsors could choose to re-introduce similar legislation. As noted above, even absent a legislative ban, the Biden Administration's EPA likely will revive the Obama-era initiative. With respect to asbestos, Sen. Jeff Merkley (D-OR) and Rep. Suzanne Bonamici (D-OR) introduced legislative bans for asbestos (S. 717/H.R. 1603). The EPA could act to reverse the Trump Administration's decision with regard to legacy uses, which appears likely given EPA's announcement it would make a draft scope document regarding legacy uses available in mid-2021, but Congress may continue to pursue legislative solutions in tandem.

The EPA is expected to take a hard look at how the Trump Administration implemented recent reforms to the Toxic Substances Control Act (TSCA). The new administration could change some aspects of the rules implementing the 2016 amendments to TSCA that have proven to be the most controversial and subject to challenge by environmental groups, such as provisions governing the conditions of use the EPA will consider during risk evaluations of existing chemicals (i.e., 40 C.F.R. §§ 702.41(a)(9), 702.47). The EPA also could reconsider the Trump Administration's risk management rules for Persistent, Bioaccumulative, and Toxic (PBT) Substances, which were recently issued in final form prior to the end of 2020, as was required by statute. In addition, compared to the relatively rapid pace of approval of new chemicals over the past few years, new EPA leadership likely will implement more aggressive review procedures, leading to lengthier approval processes for new chemicals. For example, the EPA could revert to practices under the Obama Administration in 2016, including placing additional restrictions on uses of new chemicals when approving them for market entry in the US and requiring manufacturers to generate new health and environmental effects studies for existing chemicals undergoing EPA reviews.

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Environmental Justice

One of the highest priorities of the Democratic environmental platform is to address the disproportionate impacts of environmental and public health stressors on communities of color and low-income communities. The Biden-Harris Administration can be expected to prioritize environmental justice in all aspects of environmental policy and enforcement. In this regard, the administration will draw upon the expertise of Vice President-elect Kamala Harris, an environmental justice advocate in Congress who introduced the Environmental Justice for All Act (S. 4401/H.R. 5986) and the Climate Equity Act (S. 4513/H.R. 8019).

Among other initiatives, the Biden Administration has committed to: (1) revise and reinvigorate President Bill Clinton's Executive Order 12898, which focuses federal attention to address environmental justice and the disproportionately high and adverse human health or environmental effects of agency programs in "minority populations and low-income populations"; (2) establish new interagency leadership structures to elevate environmental justice issues throughout the federal family; (3) establish a new Environmental and Climate Justice Division at the Department of Justice; and (4) target 40% of the investments in clean energy to disadvantaged communities.

The incoming administration primarily will pursue these objectives using existing authority, as opposed to using legislation (unless the Senate changes the legislative filibuster). If the Senate does change the filibuster, the Democratic Congress may take action to advance environmental justice legislation. In addition to repealing some of the revised NEPA regulations, which likely fall in the Congressional Review Act's "look back" window, a Democratic Congress is expected to re-introduce and seek enactment of aspects of the Environmental Justice for All Act (S. 4401/H.R. 5986). Originally introduced by House Democrats in March 2020 and later introduced by then-Sen. Kamala Harris (D-CA) in August 2020, the Environmental Justice for All Act is comprehensive legislation that seeks to achieve health equity and climate justice by, for example: (1) amending the Civil Rights Act; (2) codifying Executive Order 12898; (3) establishing new environmental review and permitting requirements to ensure consideration of impacts to environmental justice communities under the Clean Water Act, Clean Air Act, and NEPA; and (4) authorizing funding to support communities that transition from fossil fuel-dependent economies, research to identify safer alternatives for certain cosmetic products, and environmental justice-related research and education. The bill was included in House Democrats' Clean Economy Jobs and Innovation Act (H.R. 4447), which passed the House in September 2020.

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Regulatory Rollback

The Biden Administration and congressional Democrats are expected to pursue repealing or reversing Trump-era regulatory actions. Given the lengthy list of potential targets, the challenge for the incoming administration will be prioritizing such reversals along with the other items on its agenda.

With Democrats winning the Senate seats in Georgia and Vice President-elect Harris serving as the tie-breaking vote, some Democrats may be inclined to use the Congressional Review Act to repeal certain Trump-era regulations that fall into the CRA "look back" period. However, Democrats' narrow majority makes this avenue a steep challenge. If the CRA is used, there are several promising targets for review. For example, on October 1, 2020, the EPA finalized a rule reversing the "Once In, Always In" rule, which sets standards for when and how a facility designated as a "major source" under Section 112 of the Clean Air Act could be reclassified as an "area source," which often entails less stringent or less specific emissions control technology. Sen. Tom Carper (D-DE) has been critical of this rule, and congressional Democrats could seek to rescind the rule under the CRA. In addition to targeting a number of Clean Air Act rules finalized late in President Trump's term, congressional Democrats may seek to repeal rules narrowing the scope of review for permitting requirements, amending EPA procedures (e.g., the Guidance Documents and Environmental Appeals Board rules), and revising appliance energy efficiency standards that are viewed as unnecessary by some industry groups and are unpopular with environmental groups.

In addition to using the Congressional Review Act, the Biden Administration and congressional Democrats may take action to reverse other Trump-era regulatory initiatives. For example, congressional Democrats may attempt to pass legislation to void Endangered Species Act regulations promulgated by the Secretary of the Interior and the Secretary of Commerce on August 27, 2019, such as Rep. Raul Grijalva's (D-AZ) the Protect America's Wildlife and Fish In Need of Conservation Act of 2019 (H.R. 4348).

Beyond Congress, President-elect Biden will use his authority to reverse many of President Trump's executive orders and actions. For example, President-elect Biden likely will revoke President Trump's Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs, which was issued near the beginning of President Trump's term and announced the administration's policy of proposing two regulations to repeal for every new proposed regulation. In addition, the President-elect likely will halt rulemaking processes started, but not completed, under President Trump and seek to pause litigation challenging Trump-era environmental and energy regulations, giving the administration the opportunity to withdraw the challenged rules or take other actions to reverse the administration's position.

The Biden Administration will also revisit the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule. In the SAFE Vehicles Rule Part One, the EPA withdrew its prior Clean Air Act waiver for California's Greenhouse Gas and Zero-Emission Vehicle programs, and the National Highway Traffic Safety Administration (NHTSA) interpreted the Energy Policy and Conservation Act to preempt state greenhouse gas regulations for new vehicles. In the SAFE Vehicles Rule Part Two, the EPA rolled back the stringency of the prior federal greenhouse gas standards through Model Year 2026, and NHTSA adopted parallel fuel economy standards for that period. Democrats included in their 2020 platform the affirmation of California's authority to set standards, and the President-elect and Democrats have expressed support for more stringent emissions standards for passenger vehicles. The new administration likely will seek to restore California's authority, reconsider the outgoing administration's federal standards, and pursue more stringent standards through Model Year 2026 and beyond. It may also strengthen emissions standards for heavy-duty vehicles.

In addition, the Biden Administration also is expected to promulgate regulations to limit methane emissions in oil and gas extraction, given recent court decisions. Specifically, in 2020, a California federal district court vacated the Trump Administration's reversal of the Obama-era methane emissions regulation, and later, a Wisconsin federal district court struck down the Obama-era rule, leaving in place the original, over-30-year old regulations. The Biden Administration likely will work on a replacement rule akin to the one developed during the Obama Administration, while considering the court's concerns.

The Trump Administration has started but not finalized several regulatory initiatives, thus making them vulnerable to withdrawal by the Biden Administration if not promulgated before January 20, 2021. In particular, the Biden Administration is expected to withdraw or significantly change the revised interpretation of the Migratory Bird Treaty Act to relieve companies of liability for the incidental take of migratory birds.

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© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.