Biden Administration: Environmental Policy Changes Ahead

The Biden administration is rolling out sweeping changes that will affect environmental policy and as such, business practices and operating costs. Overall, the new administration is expressing a scientific approach to environmental policy and will look to limit environmental exposures and impacts, hold polluters accountable, reduce greenhouse gas emissions, improve our Nation’s climate resiliency and seek to improve Environmental Justice for those living in historically poor and marginalized communities.

Climate Change

One of Biden’s first steps was rejoining the Paris agreement in February 2021. In alignment with this move, Biden and his team will seek to convert our existing energy resources to 100% clean energy by 2035, with a renewed focus on sustainable energy sources and potential challenges for traditional fossil fuels, evidenced by the revocation of the Keystone XL permit on January 20th, 2021. In addition to this, Biden has plans to restore the Working Group established in 2009 by the Obama Administration to develop a social cost of carbon, which would represent the cost to society, in a dollar value, for each ton of carbon emissions produced annually. These policies could also have a negative impact on coal, petroleum/gas, power plants and mining communities.

Environmental Justice

Otherwise referred to as EJ, Environmental Justice seeks the fair treatment and involvement of all people in the development and implementation of environmental policy regardless of demographics. Biden’s plan incorporates EJ across all governmental agencies and plans to prioritize at least 40% federal investments to disadvantaged communities. Federal grants, loans, permitting decisions, enforcement and remediation priorities will take EJ into account. Biden has asked his team for recommendations in the next 120 days on how to update EJ and incorporate it into policy. It is likely that Brownfields will also be reevaluated, along with their zoning, in EJ designated communities.

Superfund

The Trump administration did not make significant changes to Superfund other than streamlining remedies, and as such, there is no indication Biden is poised to revamp Superfund programs.

PFAS

There will be an enhanced focus on PFAS, its regulation and potential designation as a Hazardous Substance under CERCLA, which could mean reopening previously closed Superfund sites with potential PFAS impacts.

Enforcement

While the Trump administration largely left the regulation and enforcement of policy to the states, Biden is expected to drastically increase enforcement as well as reverse many policy rollbacks initiated by Trump. Additionally, Supplemental Environmental Projects (SEPs), which were pulled back by Trump, will be used as partly offsetting penalties for non-compliance with regulations, permit conditions, and consent orders. Biden will reestablish the use of SEPS and direct payments to 3rd parties (e.g. communities) in lieu of payment of fines to the Federal Government.

What we recommend you do now:

  • Climate Change: Do you have a sustainability plan? Does your company have environmental, social and governance (ESG) policies? Check out our ESG Checklist and our sustainability offerings, and let us know if we can help.
  • Environmental Justice: If you are a developer, real estate investor or a municipality, be on the lookout for changes that could impact economic policies and redevelopment programs, including Brownfields. Know your neighbors, get involved with communities around your facilities, build positive community relationships.
  • Superfund/PFAS/Enforcement:
    • Self-assess your business and its compliance history, perform internal audits or engage a third party to perform a gap assessment. Prepare accordingly, and close any compliance gaps before they become a potential issue. If you need help performing third party audits or a gap assessment feel free to contact us.
    • Review any closed remediation sites, and ongoing operations that could involve PFAS impacts. If you are unsure, check out our PFAS videoSOQ and reference the EPA’s PFAS resources.

With increased enforcement, environmental litigation against private industry is likely to be increasingly active in the next four years. Settlements will include more SEPs, third-party payments, and commitments to develop and implement proactive environmental management systems. Get yourself in a defensive position now so you are prepared!

Apex Associated Press (Apex AP) represents contributions from various authors within the Apex professional community.

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