This became effective February 23, 2021
On February 23, 2021, the White House issued a Statement of Administration Policy endorsing H.R. 803 which, among other things, would permanently protect public lands and waters in Colorado, California, and Washington. The proposed legislation would designate 1.39 million acres of new wilderness and incorporate more than 1,000 river miles into the National Wild and Scenic Rivers System. The Administration’s statement notes that H.R. 803 is consistent with its goal of conserving at least 30 percent of U.S. lands and ocean by 2030.
On February 5, 2021, EPA issued updated frequently asked questions (FAQs) for its Audit Policy Program. The FAQs supersede previously issued guidance for this program and clarify a number of issues, while leaving the fundamental requirements for obtaining civil penalty relief the same as they have been for several administrations.
On February 5, 2021, DOJ’s Environment and Natural Resources Division (ENRD) withdrew a number of policies put into effect during the Trump Administration. Among other things, DOJ withdrew policy documents that curtailed the use of Supplemental Environmental Projects (SEPs) and payments to third parties in DOJ settlements for environmental matters.
On February 11, 2021, Acting Secretary of the Interior, Scott de la Vega, issued Secretarial Order No. 3396, revoking former Secretary Bernhardt’s Secretarial Order No. 3388, which imposed restrictions on the availability of Land and Water Conservation (LWCF) funding for Federal acquisitions of land, water, or interests therein. Through the order, the Biden administration will reinstate the Outdoor Recreation Legacy Partnership (ORLP) program, a $125 billion competitive grant program that provides funding for urban parks.
On February 4 2021, the Natural Resource Conservation Service issued a final rule to implement the 2018 Farm Bill’s changes to the Agricultural Conservation Easement Program (“ACEP”). The final rule made minor changes to the proposed rule issued on January 6, 2021, including, among items, widening acceptable documentation for farmers to be considered “qualified” under ACEP and removing ambiguities relating to deed requirements.
Executive Order on the President’s Council of Advisors on Science and Technology
On January 27, 2021, the White House issued an executive order establishing the President’s Council of Advisors on Science and Technology (PCAST). The order tasks the PCAST with providing advice to the President on scientific matters including, among other things, information needed to inform public policy relating to energy and the environment.
Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking
On January 27, 2021, the White House issued a memorandum to the heads of executive departments and agencies setting forth a series of scientific integrity principles and directing agency and department heads to establish and enforce scientific-integrity policies. This memorandum also requires agencies to review and update, if needed, any website content and agency reports, data or other materials published since January 20, 2017, that are inconsistent with the scientific integrity principles established by the memorandum.
On January 20, 2021, President Biden officially re-committed the United States to the Paris Agreement, a legally binding international treaty aimed at reducing greenhouse gas emissions and combating the impacts of climate change. The Agreement, to which 194 nations are party, endeavors to limit the global mean temperature increase to 1.5 degrees Celsius above pre-industrial times. On August 4, 2017, former President Trump initiated the withdrawal procedure pursuant to Article 28 of the Agreement. The withdrawal was officially submitted to the United Nations Framework Convention on Climate Change on November 4, 2019, and became effective November 3, 2020. By rejoining the Paris Agreement, the United States’ commitments under the treaty now become effective February 19, 2021.
The United States has not submitted a Nationally Determined Contribution (“NDC”) since 2015, when the Obama Administration signed the Agreement. The Agreement requires all parties to submit updates on their emissions reduction efforts every five years. Per the 2015 NDC, the United States committed to reducing emissions 26 to 28% below 2005 levels, by the year 2025.
Chemicals and Contamination
On February 16, 2021, EPA announced that it will refine its approach to selecting and reviewing the scientific studies that are used to inform Toxic Substances Control Act (TSCA) chemical risk evaluations, known as systematic review. This move is part of the new administration’s commitment to making evidence-based decisions and developing policies and programs that are guided by the best available scientific data.
In response to President Biden's January 27, 2021 Executive Order on Tackling the Climate Crisis at Home and Abroad, the Bureau of Ocean Energy Management (BOEM) announced its intention to resume the environmental review of Vineyard Wind’s proposed offshore wind project, moving forward with preparation of a Final Environmental Impact Statement. The Vineyard Wind Project proposes to construct and operate an 800 megawatt (MW) wind energy facility offshore Massachusetts.
Section 208 of the January 27, 2021 Executive Order on Tackling the Climate Crisis at Home and Abroad directs the Secretary of the Interior to: (1) "Pause" on entering into new oil and natural gas leases on public lands or offshore waters; and (2) review and reconsider Federal oil and gas permitting and leasing practices. The EO directs DOI to complete the review in consultation with Secretary of Agriculture, the Secretary of Commerce, through the National Oceanic and Atmospheric Administration, and the Secretary of Energy. The EO also states that, in conducting this analysis, the Secretary of the Interior shall consider whether to adjust royalties associated with oil, gas, and coal extraction.
On January 20, Scott de la Vega, the Acting DOI Secretary appointed by President Biden, issued Secretarial Order 3395, which limits the ability of agencies and bureaus within the Department to take certain delegated actions without authorization from senior officials. The covered actions include, among others, (1) granting rights-of-way, easements, or other conveyances of property (including land sales or exchanges) or any notices to proceed under any prior authorizations that will authorize ground disturbance activities; and (2) issuing any onshore or offshore fossil fuel authorization, including leases, lease amendments, lease extensions, contracts, or other agreements, or permits to drill. The order went into effect immediately and remains in effect for 60 days.
President Biden Issues Executive Order Halting Oil and Gas Leasing in Arctic National Wildlife Refuge, Revoking Keystone Pipeline Permit, and Ordering Review of Agency Actions Contrary to Climate Objectives
On January 20, 2021, President Biden issued an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The Executive Order imposes a moratorium on all activities of the Federal Government that implement the Coastal Plain Oil and Gas Leasing Program in the Arctic National Wildlife Refuge and revokes the permit issued to TransCanada Keystone Pipeline, L.P. in March 2019 to construct the Keystone XL Pipeline. The Executive Order also requires the heads of agencies to conduct an immediate review of regulations, orders, guidance documents, policies, and other agency actions made during President Trump’s term from 2017 to 2020 to ensure these federal actions do not conflict with national objectives to confront the climate crisis. Among the actions to be reviewed are: (i) “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration; (ii) The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” 84 Fed. Reg. 51310 (September 27, 2019); (iii) Energy Conservation Program for Appliance Standards: Procedures for Use in New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Commercial/Industrial Equipment,” 85 Fed. Reg. 8626 (February 14, 2020); (iv) National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review,” 85 Fed. Reg. 31286 (May 22, 2020).
On Thursday, January 21, 2021, President Biden named Richard Glick as Chairman of the Federal Energy Regulatory Commission (FERC). President Trump first nominated Mr. Glick to FERC in August 2017. Prior to his nomination in 2017, Mr. Glick was general counsel for the Democrats on the Senate Energy and Natural Resources Committee and previously served as Director of Government Affairs for PPM Energy. He attended George Washington University and Georgetown Law. FERC is expected to maintain a Republican majority until Neil Chatterjee’s term ends in June 2021.
On February 9, 2021, the U.S. Fish and Wildlife Service (USFWS) published a notice in the Federal Register delaying the effective date of its proposed Migratory Bird Treaty Act (MBTA) rule, which was published on January 7, 2021. The rule was originally set to take effect on February 8, 2021, but USFWS is delaying the rule's effective date until March 8, 2021. The agency is also seeking comments, among other things, on "whether the rule should be amended, rescinded, delayed pending further review by the agency, or allowed to go into effect." Comments may be submitted until March 1, 2021.
On Wednesday, January 20, 2021, President Biden issued an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The Executive Order requires the Secretary of the Interior to conduct a review of the boundaries and conditions established by previous presidential proclamations pertaining to the Bears Ears National Monument, the Grand Staircase-Escalante National Monument, and the Northeast Canyons and Seamounts Marine National Monument. The Secretary has 60 days to submit a report to the President summarizing its findings.
On February 22, 2021, EPA took action on two fronts to address per- and polyfluoroalkyl substances (PFAS) in drinking water. EPA reissued final determinations to regulate PFOS and PFOA, two members of the broader PFAS family of emerging contaminants. These determinations are an initial step in the process of implementing nationwide primary drinking water regulations for these contaminants and paves the way for the consideration of additional PFAS compounds.
On February 22, 2021, EPA proposed its most recent Unregulated Contaminant Monitoring Rule (UCMR). Under the Safe Drinking Water Act, EPA is required to issue a UCMR every five years. The UCMR is a list of unregulated contaminants for which public water systems are required to sample pursuant to the Safe Drinking Water Act. The proposed list includes 30 contaminants, 29 of which are members of the PFAS family of compounds. The proposed UCMR would provide new data to help EPA and other stakeholders understand the extent to which these contaminants are present in the nation’s drinking water system.
On his first day in office, President Biden directed EPA and the Department of Defense (Army Corps of Engineers) to review the Trump Administration’s Navigable Waters Protection Rule. Promulgated in April 2020, the Rule replaced the Obama Administration’s Clean Water Rule and significantly narrowed the scope of federal jurisdiction under the Clean Water Act.