To accompany the executive order discussed in the prior paragraph, the White House released a “non-exclusive list of agency actions” that would be reviewed pursuant to that executive order.3 The list includes several environmental rulemakings of interest to members of this Section, including the 2020 updates to the implementing regulations for the National Environmental Policy Act (NEPA); regulations for listing endangered and threatened species and designating critical habitats; the definition of “Waters of the United States” (WOTUS) under the Clean Water Act; the Environmental Protection Act’s (EPA’s) greenhouse gas emission standards for airplanes and airplane engines; EPA’s National Ambient Air Quality Standards for ozone and particulate matter; EPA’s finding “that it is not ‘appropriate and necessary’” to regulate hazardous air pollutant emissions from coal- and oil-fired electric utility steam generating units;4 EPA’s effluent limitations guidelines and standards for flue gas desulfurization wastewater and bottom ash transport water from steam electric power generators; and the repeal and replacement of the Clean Power Plan.
As of the summer of 2021, the Biden-Harris Administration has begun to make progress on its environmental goals. But, in many ways, the administration is still getting started. Important positions at the United States Environmental Protection Agency (EPA) and United States Department of Justice (DOJ) remain unfilled. Replacements to some major rules, such as the WOTUS Rule, have been promised,5 but not delivered. At this point, the administration has primarily reversed and rescinded the prior administration’s policies and rules.
B. The New Administration’s Environmental Officials
By the summer of 2021, most of the administration’s top environmental officials had been appointed or confirmed, many on a bipartisan basis. In his second week in office, President Biden created two new climate-change-related positions, National Climate Advisor and Special Presidential Envoy for Climate, through an executive order,6 and selected former EPA director Gina McCarthy and former Secretary of State John Kerry, respectively, to serve in those positions.7 Michael Regan, previously secretary of the North Carolina Department of Environmental Quality,8 was confirmed as EPA’s Administrator in March.9 Brenda Mallory, who had served as General Counsel for the Council on Environmental Quality (CEQ) (the agency that implements NEPA) under President Obama,10 was confirmed as Chair of the CEQ in April.11 Janet McCabe, the Acting Assistant Administrator for EPA’s Office of Air and Radiation under President Obama, was confirmed as EPA Deputy Administrator that same month.12 Michal Ilana Freedhoff, previously the Minority Director of Oversight for the Senate Environment and Public Works Committee,13 was confirmed to head EPA’s Office of Chemical Safety and Pollution Prevention by a voice vote in June.14 Radhika Fox, previously the Chief Executive Office of US Water Alliance,15 was confirmed as the Assistant Administrator for Water a few days later.16
Several nominations made in the spring, however, still awaited consideration by the Senate as of summer 2021. In March, for example, President Biden nominated Todd Kim, who had previously served as an appellate environmental attorney at the DOJ, to serve as Assistant Attorney General for the DOJ’s Environment and Natural Resources Division.17 In late April, President Biden nominated Jeffrey Prieto, who has served in several positions in the DOJ’s Environment and Natural Resources Division and at one point co-chaired the implementation of the Division’s Environmental Justice Plan, to serve as EPA’s General Counsel.18 In mid-June, President Biden nominated Carlton Waterhouse, a law professor at Howard University with expertise in environmental law and environmental justice, to head EPA’s Office of Land and Emergency Management.19 In late June, President Biden nominated David Uhlmann, the current director of the Environmental Law and Policy Program at the University of Michigan Law School and past Chief of the DOJ’s Environmental Crimes Section, to head EPA’s Office of Enforcement and Compliance Assurance (OECA).20 None had been confirmed by July 2021.
There are also several important positions, moreover, for which President Biden has not nominated or appointed anyone. Joe Goffman (previously President Obama’s Associate Assistant Administrator for Climate, and Senior Counsel in the Office of Air and Radiation)21 is serving as Acting Assistant Administrator for Air and Radiation22 and appears likely to do so for the foreseeable future. The proposed budget for EPA for fiscal year 2022 includes a proposal to “create a new national environmental justice program office, headed by a Senate-confirmed Assistant Administrator,”23 but the position remains unformed and unfilled. President Biden also has not selected a regional administrator for any of EPA’s regional offices, though Administrator Regan has said filling these positions is a “top priority” for EPA, and that having “regional administrators in place” is necessary “to . . . execute on the president’s very ambitious agenda. . . .”24
C. The New Administration’s Policies and the Progress So Far
The lack of personnel in some key environmental roles may have slowed the new administration’s implementation of its agenda. As indicated above, President Biden’s first-day executive order on “Protecting Public Health and the Environment” set out four environmental focuses for his administration: protecting the “integrity” of the rulemaking process; increasing enforcement; “reduc[ing] greenhouse gas emissions”; and “advanc[ing] environmental justice.”25 As discussed below, the administration’s progress in these areas has been uneven, with the primary successes in some areas limited to reversing the prior administration’s policies and rules.
1. The Rulemaking Process
President Trump issued a number of executive orders designed to reduce regulation and expedite agency decision-making, most of which President Biden revoked in his first days in office. For example, an early executive order by President Trump required federal agencies to repeal two existing regulations for each new one they promulgated.26 President Biden revoked it.27 President Trump ordered federal agencies to review “and appropriately suspend, revise, or rescind [regulations] that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.”28 President Biden revoked that too.29
In October 2019, President Trump issued an executive order intended to forestall agencies from using their authority to issue guidance documents to “regulate the public without following the rulemaking procedures of the [Administrative Procedure Act].”30 The executive order directed each agency to set up a searchable, web-based database of its effective guidance and to establish procedures that would allow the public to comment on “significant guidance document[s]” and submit petitions to withdraw or modify existing guidance.” President Biden revoked the executive order on his first day in office,31 and EPA rescinded its guidance regulations (and took down the Trump EPA’s new “guidance portal”) in May 2021.32
The Biden EPA also moved to rescind and reverse several Trump-era rules that altered the agency’s rulemaking processes. In December 2020, the Trump EPA finalized a rule requiring the agency to conduct cost-benefit analyses for all significant rulemakings under the Clean Air Act.33 The rules required EPA to consider the results of those analyses when proposing or finalizing rules, where permitted by the relevant section of the Clean Air Act; to include specified information when developing the cost-benefit analyses; and to justify and summarize those analyses in the notices announcing those rulemakings. It also required the cost-benefit analyses to distinguish the rules’ primary costs and benefits from their collateral costs and benefits. The Biden EPA issued an interim final rule rescinding the Trump rule in May 2021, although it did invite comment on the interim final rule.34
Additionally, in the final month of the Trump-Pence Administration, EPA issued a rule designed to require the agency to give greater weight to scientific studies “where the underlying dose-response data are available in a manner sufficient for independent validation” when EPA promulgates significant rules “for which the conclusions are driven by the quantitative relationship between the amount of dose or exposure to a pollutant, contaminant, or substance and an effect . . . .”35 The Trump EPA attempted to make the rule effective immediately.36 Three environmental organizations challenged the rule in the United States District Court for the District of Montana. After the court ruled that the rule’s effective date violated the Administrative Procedure Act, and, in so ruling, questioned EPA’s authority to promulgate the rule,37 the Biden EPA moved the court to vacate and remand the rule, which the court did.38
2. Environmental Enforcement Generally
Environmental enforcement decreased during the Trump Administration, continuing a downward trend that had begun in prior administrations.39 EPA Administrator Regan has pledged to “[s]trengthen enforcement of violations of cornerstone environmental statutes . . . in communities overburdened by pollution[,]”40 but the results of those efforts will not be released until next year. The Biden-Harris Administration has also proposed to increase the number of enforcement personnel at EPA. EPA’s workforce in fiscal years 2018–2020, as measured by full-time equivalents (FTEs), was smaller than it had been since 1987, though the agency saw a small increase in fiscal year 2021.41 President Biden’s proposed budget for fiscal year 2022 would increase EPA’s workforce by over 1,000 FTEs, including “86 additional FTE to support the criminal and civil enforcement programs . . . .”42 President Biden’s proposed budget also would direct “$26 million in additional resources to develop and implement a comprehensive civil enforcement plan for addressing environmental justice, climate, . . . and coal combustion residue (CCR) rule compliance.”43 But Congress has yet to pass a funding bill for EPA.
EPA’s enforcement policies have seen a more definitive reversal under President Biden, though the effects of that reversal have not yet been seen. For example, under President Trump, then-Assistant Administrator Susan Parker Bodine of the Office of Enforcement and Compliance Assurance (OECA) issued a memorandum on “The Appropriate Use of Compliance Tools in Civil Enforcement Settlements.”44 The memorandum withdrew a 2015 memorandum that, Assistant Administrator Bodine said, “tended to suggest that ‘innovative enforcement’ tools such as advanced monitoring and independent third-party verification of settlement obligations should routinely be included in Agency settlements.”45 Bodine said that such tools could still be used, but that there was “no default expectation” that they would be used.46 Three years later, OECA’s current Acting Assistant Administrator, Lawrence Starfield, withdrew the Bodine memorandum and encouraged “enforcement staff and case teams to appropriately use the full array of policy and legal tools available,” including advanced monitoring and independent third-party verification.47 It is unclear whether this return to the Obama Administration’s “Next Generation Enforcement” policies has led to significant differences in enforcement settlements.
In March 2020, then-Assistant Attorney General Jeffrey Bossert Clark issued a memorandum forbidding the inclusion of Supplemental Environmental Projects (SEPs) (i.e., agreements to undertake environmentally beneficial projects or payments) in consent decrees and settlements, on the grounds that SEPs “divert cash from the Treasury to third parties” in violation of the Miscellaneous Receipts Act, 31 U.S.C. § 3302.48 Jean Williams, Deputy Assistant Attorney General for the Biden-Harris Administration, withdrew Clark’s memorandum in February 2021, along with a series of other environmental policy memoranda on enforcement principles and priorities, equitable mitigation, and other topics that Clark had released in the last few days of the Trump-Pence Administration.49 However, a DOJ regulation generally prohibiting the use of SEPs in settlement agreements, which went into effect in December 2020, remains in effect as of the summer of 2021.50
3. Climate Change
On climate change, as with enforcement, the beginning of the Biden-Harris Administration brought a reversal of the prior administration’s reversals. The Trump-Pence Administration declared in November 2019 that it would withdraw the United States from the Paris climate accord, effective November 4, 2020.51 The Biden-Harris Administration re-entered the Agreement on its first day in office,52 and announced a new pledge to reduce America’s greenhouse gas emissions by fifty to fifty-two percent (compared to 2005 levels) by 2030.53
The Biden-Harris Administrations also reversed the Trump-Pence Administration’s reversals regarding the method for determining the “social cost of carbon,” which is a “tool, developed by an interagency working group, [that] attempts to value in dollars the long-term harm done by each ton of carbon emitted”54 for use in federal cost-benefit analyses. In March 2017, President Trump disbanded the Obama Administration’s Interagency Working Group on Social Cost of Greenhouse Gases and directed federal agencies to follow a new approach for developing estimates of the “value of changes in greenhouse gas emissions resulting from regulation,”55 which focused on “domestic rather than global climate change damages” and used a higher discount rate, resulting in federal estimates of the social cost of carbon that were “about 7 times lower than the prior federal estimates.”56 President Biden reestablished the Interagency Working Group and tasked it with issuing a new “interim” social cost of carbon (SCC), social cost of nitrous oxide (SCN), and social cost of methane (SCM) within thirty days.57 The interim estimates, which the Interagency Working Group released in February, reverse the Trump Administration’s changes and return the estimated social cost of carbon to Obama-era levels.58
The Biden-Harris Administration also reversed the Trump-Pence Administration’s efforts to handcuff EPA’s ability to regulate greenhouse gas emissions under Section 111 (42 U.S.C. § 7411) of the Clean Air Act. The Trump EPA published a final rule under which source categories would be “considered to contribute significantly to dangerous air pollution due to their [greenhouse gas] emissions,” and thus have their greenhouse gas emissions regulated through New Source Performance Standards or existing source emission guidelines, only if those source categories emitted more than three percent of all greenhouse gas emissions in the United States.59 Only electric generating units currently exceed that threshold. The State of California and others challenged the rule in the United States Court of Appeals for the D.C. Circuit. The Biden-Harris Administration moved the court to vacate and remand the rule, and the court granted the motion.60
Going forward, it is unclear how the Biden-Harris Administration will regulate greenhouse gas emissions from electric generating units. The Trump EPA replaced the Obama Administration’s sweeping Clean Power Plan61 with the much more limited Affordable Clean Energy (ACE) Rule,62 which the D.C. Circuit vacated and remanded.63 In court filings, the Biden EPA has indicated it will take a “fresh look” at its authority under 42 U.S.C. § 7411(d).64 However, the Biden-Harris Administration also has indicated that it may first seek to accomplish its goal of “achieving [a] 100 percent carbon-pollution-free electric sector by 2035”65 through legislation.66
EPA’s most certain reduction of greenhouse gases will come as a result of legislative action, not executive action. In late 2020, Congress enacted the American Innovation and Manufacturing (AIM) Act of 2020,67 which “directs EPA . . . to phase down the production and consumption of [eighteen] listed HFCs [(hydrofluorocarbons) between 2020 and 2036 through an allowance allocation and trading program], manage these HFCs and their substitutes, and facilitate the transition to next-generation technologies.”68 EPA proposed its rules to implement the requirements of the AIM Act in May 2021,69 and it must finalize them by September 2021.70
4. Environmental Justice
In an early executive order, President Biden declared it “the policy of my Administration to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.”71 In that executive order, President Biden created a White House Environmental Justice Interagency Council, to be chaired by the Chair of the CEQ, and tasked it with “develop[ing] a strategy to address current and historic environmental injustice . . . .”72 He also created a White House Environmental Justice Advisory Council, with members “appointed by the President” and “drawn from across the political spectrum,” to advise the Interagency Council.73 He directed EPA to “strengthen enforcement of environmental violations with disproportionate impact on underserved communities” and “create a community notification program to monitor and provide realtime data to the public on current environmental pollution, including emissions, criteria pollutants, and toxins, in frontline and fenceline communities . . . .”74 He directed his Attorney General to coordinate with EPA “to develop a comprehensive environmental justice enforcement strategy.”75 And he created the “Justice40 Initiative,” which tasked the Chair of the CEQ and others with publishing recommendations for directing at least “40 percent of the overall benefits” from investments in such things as clean energy, energy efficiency, clean transit, clean water infrastructure, and pollution remediation “to disadvantaged communities.”76
In the spring and early summer of 2021, the acting Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance (OECA), Lawrence Starfield, issued a series of memoranda providing instructions to his office to carry out Administrator Regan’s directive. Among other things, the memoranda directed the OECA to conduct more “facility inspections” and “strengthen enforcement in overburdened communities”;77 ensure that prosecutions of environmental crimes secure “punishment . . . sufficient to achieve the goal of deterrence”;78 and focus on early and expedited cleanup actions in overburdened communities under CERCLA and RCRA.79 The effects of these memoranda on enforcement will be seen in the coming years.
Finally, the Biden-Harris Administration’s proposed budget for EPA for FY 2022 would direct $936 million “in funding across programs to launch a new Accelerating Environmental and Economic Justice initiative” to provide grants, “strengthen enforcement,” and increase environmental remediation in environmental justice communities.80 It would also invest “more than $100 million to develop and implement a new community air quality monitoring and notification system” to “provide real-time data to the public on environmental pollution.”81 As stated above, however, Congress has not yet passed an appropriations bill for EPA for FY 2022.
D. Conclusion
Thus, the summer of 2021 finds the EPA in a time of transition. The Biden-Harris Administration has announced its major policy focuses, which include climate change and environmental justice, and reversed many of the rulemaking activities that the Trump-Pence Administration undertook in its final days. But, in many ways, the new administration has yet to move significantly past those acts of negation. Significant positions at EPA headquarters remain unfilled, as do all of the regional administrator positions. And replacements for some of the most significant environmental rulemakings of the Trump-Pence Administration have only been promised. In place of rulemakings, the Biden-Harris Administration has at this point largely announced principles. Much of the real work of the Administration is yet to come.
Endnotes
1. Exec. Order No. 13,783, Promoting Energy Independence and Economic Growth, 82 Fed. Reg. 16,093 (Mar. 28, 2017).
2. Id.
3. Id.
4. Press Release, White House, Fact Sheet: List of Agency Actions for Review (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review.
5. 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. 31,286 (May 22, 2020).
6. See, e.g., Press Release, U.S. Env’t Prot. Agency, EPA, Army Announce Intent to Revise Definition of WOTUS (June 9, 2021), https://www.epa.gov/newsreleases/epa-army-announce-intent-revise-definition-wotus.
7. Exec. Order No. 14,008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7,619 (Feb. 1, 2021).
8. Joseph R. Biden, President, Remarks Before Signing Executive Actions on Tackling Climate Change, Creating Jobs, and Restoring Scientific Integrity (Jan. 27, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/01/27/remarks-by-president-biden-before-signing-executive-actions-on-tackling-climate-change-creating-jobs-and-restoring-scientific-integrity.
9. Press Release, U.S. Env’t Prot. Agency, Michael S. Regan Sworn in as 16th EPA Administrator (Mar. 11, 2021), https://www.epa.gov/newsreleases/michael-s-regan-sworn-16th-epa-administrator.
10. 167 Cong. Rec. S1456 (Mar. 10, 2021).
11. White House, Council on Environmental Quality, Brenda Mallory, Chair, https://www.whitehouse.gov/ceq/chair-brenda-mallory.
12. 167 Cong. Rec. S1923 (Apr. 14, 2021).
13. 167 Cong. Rec. S2210 (Apr. 27, 2021).
14. Press Release, U.S. Env’t Prot. Agency, EPA Welcomes Members of the Biden-Harris Leadership Team (Jan. 21, 2021), https://www.epa.gov/newsreleases/epa-welcomes-members-biden-harris-leadership-team.
15. 167 Cong. Rec. S4514 (June 14, 2021).
16. Press Release, U.S. Env’t Prot. Agency, EPA Welcomes Members of the Biden-Harris Leadership Team (Jan. 21, 2021), https://www.epa.gov/newsreleases/epa-welcomes-members-biden-harris-leadership-team.
17. 167 Cong. Rec. S4573 (June 16, 2021).
18. Press Release, White House, President Biden Announces His Intent to Nominate Key Members of His Administration (Mar. 15, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/03/15/president-biden-announces-his-intent-to-nominate-key-members-of-his-administration.
19. Press Release, White House, President Biden Announces 16 Key Administration Nominations (Apr. 28, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/28/president-biden-announces-16-key-administration-nominations.
20. Press Release, White House, President Biden Announces Seven Key Nominations (June 11, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/11/president-biden-announces-seven-key-nominations.
21. Press Release, White House, President Biden Announces Three Key Nominations (June 22, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/22/president-biden-announces-three-key-nominations-2.
22. Press Release, U.S. Env’t Prot. Agency, EPA Welcomes Members of the Biden-Harris Leadership Team (Jan. 21, 2021), https://www.epa.gov/newsreleases/epa-welcomes-members-biden-harris-leadership-team.
23. U.S. Env’t Prot. Agency, About the Office of Air and Radiation, https://www.epa.gov/aboutepa/about-office-air-and-radiation-oar.
24. U.S. Env’t Prot. Agency, FY 2022 EPA Budget in Brief at 10 (May 26, 2021), https://www.epa.gov/sites/default/files/2021-05/documents/fy-2022-epa-bib.pdf.
25. Lynn Sweet & Brett Chase, EPA Chief Says Filling Vacant Top Agency Job in Chicago on ‘Expedited Timeline,’ Chi. Sun-Times (June 30, 2021), https://chicago.suntimes.com/metro-state/2021/6/30/22558037/epa-chief-michael-regan-on-expedited-time-line-to-fill-vacant-chicago-based-top-epa-regional-job.
26. Exec. Order No. 13,990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7,037 (Jan. 25, 2021).
27. Exec. Order No. 13,771, Reducing Regulation and Controlling Regulatory Costs, 82 Fed. Reg. 9,39 (Feb. 3, 2017).
28. Exec. Order No. 13,992, Revocation of Certain Executive Orders Concerning Federal Regulation, 86 Fed. Reg. 7,049 (Jan. 25, 2021).
29. Exec. Order No. 13,783, Promoting Energy Independence and Economic Growth, 82 Fed. Reg. 16,093 (Mar. 31, 2017).
30. Exec. Order No. 13,990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7,037, 7,041 (Jan. 25, 2021).
31. Exec. Order No. 13,891, Promoting the Rule of Law Through Improved Agency Guidance Documents, 84 Fed. Reg. 55,235 (Oct. 15, 2019).
32. Exec. Order No. 13,992, Revocation of Certain Executive Orders Concerning Federal Regulation, 86 Fed. Reg. 7,049 (Jan. 25, 2021).
33. EPA Guidance; Administrative Procedures for Issuance and Public Petitions; Rescission, 86 Fed. Reg. 26,842 (May 18, 2021).
34. Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 85 Fed. Reg. 84,130 (Dec. 23, 2020) (to be codified at 40 C.F.R. pt. 83).
35. Rescinding the Rule on Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process, 86 Fed. Reg. 26,406 (May 14, 2021).
36. Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469–470 (Jan. 6, 2021) (to be codified at 40 C.F.R. pt. 30).
37. Id., 86 Fed. Reg. at 470.
38. EDF v. U.S. Env’t Prot. Agency, No. 4:21-cv-03-BMM, 2021 U.S. Dist. LEXIS 15655, *33 (D. Mont. Jan. 27, 2021).
39. EDF v. U.S. Env’t Prot. Agency, No. 4:21-cv-00003-BMM, 2021 U.S. Dist. LEXIS 24202 (D. Mont. Feb. 1, 2021).
40. See U.S. Env’t Prot. Agency, Office of Inspector General, EPA’s Compliance Monitoring Activities, Enforcement Actions, and Enforcement Results Generally Declined from Fiscal Years 2006 Through 2018 (Mar. 31, 2020), https://www.epa.gov/sites/default/files/2020-04/documents/_epaoig_20200331_20-p-0131_0.pdf.
41. Press Release, U.S. Env’t Prot. Agency, EPA Administrator Announces Agency Actions to Advance Environmental Justice (Apr. 7, 2021), https://www.epa.gov/newsreleases/epa-administrator-announces-agency-actions-advance-environmental-justice.
42. U.S. Env’t Prot. Agency, EPA’s Budget and Spending, https://www.epa.gov/planandbudget/budget.
43. Press Release, U.S. Env’t Prot. Agency, Statement by Administrator Regan on the President’s FY 2022 Budget (June 2, 2021), https://www.epa.gov/newsreleases/statement-administrator-regan-presidents-fy-2022-budget.
44. U.S. Env’t Prot. Agency, FY 2022 EPA Budget in Brief at 12 (May 26, 2021), https://www.epa.gov/sites/default/files/2021-05/documents/fy-2022-epa-bib.pdf.
45. Memorandum from Susan Parker Bodine, Assistant Administrator, Office of Enforcement and Compliance Assurance, U.S. Env’t Prot. Agency, The Appropriate Use of Compliance Tools in Civil Enforcement Settlements (Apr. 3, 2018), https://www.epa.gov/sites/default/files/2018-04/documents/memoonappropriateuseofcompliancetoolsincivilenforcementsettlements.pdf.
46. Id. at 1.
47. Id. at 2.
48. Memorandum from Lawrence E. Starfield, Acting Assistant Administrator, Office of Enforcement and Compliance Assurance, U.S. Env’t Prot. Agency, Using All Appropriate Injunctive Relief Tools in Civil Enforcement Settlements (Apr. 26, 2021), https://www.epa.gov/sites/default/files/2021-04/documents/usingallappropriateinjunctiverelieftoolsincivilenforcementsettlement0426.pdf.
49. Memorandum from Jeffrey Bossert Clark, Assistant Att’y Gen., U.S. Dep’t of Just., Environment and Natural Resources Division to ENRD Deputy Assistant Att’y Gens. and Section Chiefs, Supplemental Environmental Projects (SEPs) in Civil Settlements with Private Defendants at 1, 11 (Mar. 12, 2020), https://www.justice.gov/enrd/file/1257901/download.
50. Memorandum from Jean E. Williams, Deputy Assistant Att’y Gen., U.S. Dep’t of Just., Environment and Natural Resources Division to ENRD Section Chiefs and Deputy Section Chiefs re: Withdrawal of Memoranda and Policy Documents (Feb. 4, 2021), https://www.justice.gov/enrd/page/file/1364716/download.
51. See 28 C.F.R. § 50.28.
52. See United Nations Secretary General, Note to Correspondents: In Response to Questions About U.S. Withdrawal from the Paris Agreement (Nov. 4, 2019), https://www.un.org/sg/en/content/sg/note-correspondents/2019-11-04/note-correspondents-response-questions-about-us-withdrawal-the-paris-agreement.
53. Press Release, White House, Paris Climate Agreement: Acceptance on Behalf of the United States of America (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/paris-climate-agreement.
54. See Press Release, White House, FACT SHEET: President Biden Sets 2030 Greenhouse Gas Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs and Securing U.S. Leadership on Clean Energy Technologies (Apr. 22, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies.
55. Sierra Club v. FERC, 867 F.3d 1357, 1375 (2017).
56. Exec. Order No. 13,783, Promoting Energy Independence and Economic Growth, 82 Fed. Reg. 16,093, 16,095–96 (Mar. 28, 2017).
57. U.S. Gov’t Accountability Off., GAO-20-254, Social Cost of Carbon: Identifying a Federal Entity to Address the National Academies’ Recommendations Could Strengthen Regulatory Analysis (2020).
58. Exec. Order No. 13,990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7,037, 7,040 (Jan. 25, 2021).
59. See Interagency Working Group on Social Cost of Greenhouse Gases, Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide; Interim Estimates Under Executive Order 13990 (Feb. 2021), https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf; see also Notice of Availability and Request for Comment on “Technical Support Document: Social Cost of Carbon, Methane, and Nitrous Oxide Interim Estimates Under Executive Order 13990,” 86 Fed. Reg. 24,669, 24,670 (May 7, 2021).
60. Pollutant-Specific Significant Contribution Finding for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, and Process for Determining Significance of Other New Source Performance Standards Source Categories, 86 Fed. Reg. 2,542–2,543, 2,546–2,547 (Jan. 13, 2021).
61. State of California v. Env’t Prot. Agency, Nos. 21-1035 et al., Order (D.C. Cir. Apr. 5, 2021).
62. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60, subpt. UUUU).
63. Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units, 84 Fed. Reg. 32,520 (July 8, 2019) (to be codified at 40 C.F.R. pt. 60, subpt. UUUUa).
64. Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021).
65. Brief for the Federal Respondents in Opposition at 18, West Virginia v. EPA, No. 20-1530 (U.S. Aug. 5, 2021).
66. Joseph R. Biden, President, Remarks Before Signing Executive Actions on Tackling Climate Change, Creating Jobs, and Restoring Scientific Integrity (Jan. 27, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/01/27/remarks-by-president-biden-before-signing-executive-actions-on-tackling-climate-change-creating-jobs-and-restoring-scientific-integrity.
67. See, e.g., White House Will Seek Law to Require Carbon-Free Power from U.S. Utilities, Reuters (Apr. 1, 2021), https://www.reuters.com/article/us-usa-biden-clean-energy/white-house-will-seek-law-to-require-carbon-free-power-from-u-s-utilities-idUSKBN2BO6NV.
68. H.R. 133, 116th Cong., Div. S, § 103 (2020).
69. U.S. Env’t Prot. Agency, AIM Act, https://www.epa.gov/climate-hfcs-reduction/aim-act.
70. Phasedown of Hydrofluorocarbons: Establishing the Allowance Allocation and Trading Program Under the American Innovation and Manufacturing Act, 86 Fed. Reg. 27,150 (May 19, 2021) (to be codified at 40 C.F.R. pt. 84).
71. H.R. 133, 116th Cong., Div. S, § 103(e)(3) (2020).
72. Exec. Order No. 14,008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7,619, 7,629 (Feb. 1, 2021).
73. Id. at 7,629–7,630.
74. Id. at 7,630.
75. Id. at 7,631.
76. Id.
77. Id.
78. Memorandum from Lawrence E. Starfield, Acting Assistant Administrator, Office of Enforcement and Compliance Assurance, U.S. Env’t Prot. Agency, Strengthening Enforcement in Communities with Environmental Justice Concerns (Apr. 30, 2021), https://www.epa.gov/sites/default/files/2021-04/documents/strengtheningenforcementincommunitieswithejconcerns.pdf.
79. Memorandum from Lawrence E. Starfield, Acting Assistant Administrator, Office of Enforcement and Compliance Assurance, U.S. Env’t Prot. Agency, Strengthening Environmental Justice Through Criminal Enforcement (June 21, 2021), https://www.epa.gov/system/files/documents/2021-07/strengtheningejthroughcriminal062121.pdf.
80. Memorandum from Lawrence E. Starfield, Acting Assistant Administrator, Office of Enforcement and Compliance Assurance, U.S. Env’t Prot. Agency, Strengthening Environmental Justice Through Cleanup Enforcement Actions (July 1, 2021), https://www.epa.gov/system/files/documents/2021-07/strengtheningenvirjustice-cleanupenfaction070121.pdf.
81. U.S. Env’t Prot. Agency, FY 2022 EPA Budget in Brief at 10 (May 26, 2021), https://www.epa.gov/sites/default/files/2021-05/documents/fy-2022-epa-bib.pdf.
82. Id.