President Biden is moving quickly to review and revise many of former President Trump’s administrative actions. As I discussed HERE, the fastest mechanisms for these reversals are executive orders (EOs) and slightly less formal executive memoranda from the President or his agency heads. One of the EOs signed on president Biden’s first day of office starts immediate action to review all Trump administrative actions. EO 13990 of January 20, 2021, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis”, applies to all federal agencies but focuses on President Trump’s environmental actions. The remainder of this note discusses this particular EO.
Audit, Compliance and Risk Blog
President Biden and the Democratic majorities in Congress have announced sweeping plans to reverse most of the Trump Administration’s environmental policies. The timing and practicality of these reversals depends very much on each of the targeted policy’s legal status – laws, regulations, Executive Orders, or guidance documents. The remainder of this note comments on each of these sets of situations, highlighting examples of each. I’ll discuss them in order ranging from quickest/easiest to most time consuming/difficult.
National waste management laws and regulations provide management requirements to the perceived hazards of each category, under overall regulation by the Environmental Protection Agency (EPA). Effective September 8, 2020, EPA will make extensive technical revisions to its standards for the “ignitability characteristic”, so entities that generate or manage wastes that might be ignitable should now review those wastes and associated management requirements.
One of the longest running sub-national greenhouse gas (GHG) control efforts in the U.S. has been the Regional Greenhouse Gas Initiative (RGGI) program. RGGI provides a cap-and-trade program covering GHG emissions from targeted fossil fuel power plants in participating northeastern states. The program is preparing to add a new participating state in 2021 -- Virginia.Read More
Effective March 2, 2020, the Environmental Protection Agency (EPA) has issued rules governing the agency’s administrative civil inspection procedures (40 CFR s. 31.1). These new rules meet a requirement created by President Trump’s Executive Order (EO) 13892 (“Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication”), issued October 9, 2019 (I wrote about this EO HERE). The new rules apply to on-site civil inspections conducted by EPA personnel, and to federally credentialled contractors and Senior Environmental Employment (SEE) employees conducting inspections on EPA’s behalf; they do not apply to criminal investigations, nor to state and state-credentialled inspections.Read More
Effective March 12, 2020, the US Department of Justice (DOJ) prohibits its US attorneys from entering into settlements in which DOJ lowers penalties for defendants that agree to conduct “supplemental environmental projects (SEPs)”, if the SEP involves payments to a third party. This action is the latest in a series of DOJ moves against SEPs since President Trump took office. The first such step was a June 2017 DOJ management memorandum directing US attorneys NOT to agree to SEPs that include payments to third parties (I wrote about that memo HERE). The second was an August 2019 memorandum restricting use of SEPs in Clean Water Act (CWA) cases against state and local governments, in which DOJ rejected arguments that recent legislation allows them (I wrote about that memo HERE).Read More
The 2016 Amendments to the Toxic Substances Control Act (TSCA; the “Frank R. Lautenberg Chemical Safety for the 21st Century Act”) assigned the Environmental Protection Agency (EPA) a variety of new responsibilities and powers to review and regulate chemicals in commerce in the United States. These changes include additional requirements to review chemicals already in use (I summarized this piece of the new TSCA here). Despite all the changes to EPA priorities since 2016 (i.e., during the Trump Administration), EPA has marched forward with these chemical reviews. These reviews include formal statutory requirements to identify separate lists of 20 “high priority” – i.e., potentially high risk – chemicals for accelerated reviews, and 20 “low priority” chemicals EPA considers not to need further review. I wrote about EPA’s 2019 proposals for these lists here.Read More
On January 23, 2020 the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) finalized revisions to narrow their joint regulatory definitions of “waters of the United States”, applying authority under the Clean Water Act (CWA). The agencies characterize this narrowing as an increase in certainty for stakeholders, accomplished by eliminating some of the site-specific discretion that the 2015 rules provided to permit writers.
This marks the latest step in a cycle of rulemakings that began during the Obama administration in 2015, when the same agencies adopted revisions to the same rules expanding their definitions in order to interpret and apply then-recent decisions by the US Supreme Court.Read More
The federal Council on Environmental Quality (CEQ) has proposed to revise its regulations administering the National Environmental Policy Act (NEPA) of 1969. NEPA requires federal agencies to assess the environmental effects of their proposed actions, and incorporate this information into their decisions. Government-wide guidance is provided by the White House’s CEQ, established by NEPA and appointed by the President. CEQ issues formal regulations that agencies must follow, and guidance documents that provide additional advice. CEQ also reviews agencies’ NEPA implementation programs, and publishes annual national Environmental Quality Reports.Read More
On February 10, the Trump Administration issued its budget proposal for federal Fiscal Year (FY) 2021 (October 1, 2020 through September 30, 2021), entitled “A Budget for America’s Future.” The drastic changes in budgeting for environmental health and safety (EH&S) regulation are consistent with previous proposals from this administration. They have no chance of adoption, particularly given the Democrats’ control of the House of Representatives, but still represent a fair summary of the President’s continuing priorities.Read More