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Environmental Law Update

Kyle R. Johnson

From this author’s perspective, there is currently no bigger story in environmental law than the election of President Joe Biden to the highest office in the land. As most readers know, President Trump spent the bulk of his presidency undoing, or attempting to undo, Obama-era environmental policies. The biggest question is whether President Biden will be able to do much beyond returning to the Obama administration’s status quo. This column provides a brief overview of actions that President Biden will likely take in the first few months after taking office to counteract President Trump’s environmental legacy. As this column is being published after Inauguration Day, there is a strong possibility that many of the action items mentioned in this column will have already been completed.

At the forefront of environmental policy is, of course, climate change. Biden’s campaign emphasized that climate change would be a priority for his administration. One of the first actions Biden will take on climate change will be to reverse course on President Trump’s decision to withdraw from the Paris Climate Agreement on global warming. That withdrawal took effect in November 2020, the day after election day. The 2015 Paris Agreement brought together over 200 countries to limit fossil-fuel pollution. Each member country made voluntary, non-binding pledges to reduce fossil-fuel pollution to attempt to hold the rise in global temperatures to less than 2 degrees Celsius. Biden has re-applied to the Paris Agreement on his first day as President and has even suggested that he would put pressure on member countries to increase the ambition of their individual pledges. The United States’ re-entry into the Paris Agreement could take effect in as few as 30 days from Inauguration Day. Biden’s team has also indicated that it would take action on climate change through executive orders.

Next on Biden’s agenda will be the reversal of Trump-era rollbacks on regulations affecting clean air, water, wildlife, and toxic chemicals. The remainder of this column will focus on the first two areas.

Air

In June 2019, the Trump administration replaced the Obama-era Clean Power Plan that aimed to reduce CO2 emissions from coal- and gas-fired electrical power generation facilities by 32 percent by 2030, relative to 2005 levels. The Trump-era regulation, known as the Affordable Clean Energy Rule, gives states significantly more authority in their individual decisions to scale back emissions and significantly downplays the federal government’s involvement in setting those standards. The Attorneys General of several states and various environmental nonprofit organizations immediately challenged the Affordable Clean Energy Rule. The decision rests with the DC Circuit Court of Appeals, but it is not clear whether the DC Circuit will issue an opinion before Inauguration Day. It faced a similar issue in 2016 when it reviewed the legality of the Clean Power Plan but ultimately never issued an opinion because President Trump was elected before action by the court.

In addition to the replacement of the Affordable Clean Energy Rule, President Biden will likely reinstate Obama-era rules on methane emissions, particularly those rules affecting oil and gas companies and limiting emissions on public lands. The President is also likely to take a renewed look at Obama-era fuel economy and greenhouse gas standards for passenger cars and light trucks, as well as California’s attempt to set stricter tailpipe emissions standards than the federal government.

Water

One of the most controversial Obama-era rulemakings involved the so-called Waters of the United States (WOTUS) Rule. Under the Clean Water Act (CWA), “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311. “The discharge of a pollutant” is then defined to include “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). “Navigable waters” are defined as “the waters of the United States, including the territorial seas.” 33 U.S.C. §1362(7). The CWA defines “navigable waters,” but it does not define “waters of the United States,” a term that has been a source of contention for decades. Although it may seem like an arcane concept, which waters constitute “waters of the United States” is an immensely important issue to farmers, ranchers, real estate developers, power plants, and other industries. Projects near WOTUS can trigger costly and time-consuming permit processes and oversight by the Environmental Protection Agency (EPA) and the US Department of the Army, Corps of Engineers (Army Corps).

In 2015, the Obama Administration’s EPA and the Army Corps revised and expanded the WOTUS rule to include tributaries of navigable waters, wetlands, and ponds within 100 feet or the 100-year floodplain of a protected waterway, and certain isolated waters with a “significant nexus” to protected waters. The EPA argued that the rule provided additional certainty for approximately 3 percent of the nation’s waterways and would in turn reduce litigation.

In February 2017, President Trump issued an executive order directing EPA and the Army Corps to rescind or revise the Obama Administration WOTUS rule. The EPA and the Army Corps released a proposed replacement rule in December 2018 that significantly narrows the definition of WOTUS and requires a “direct hydrological connection” before a wetland is considered “waters of the United States.” A tributary receives protection only if it “contributes perennial or intermittent flow to a traditional navigable water… in a typical year.” In sum, the narrowed definition was expected to reduce significantly the number of streams and wetlands that fall under CWA protection. After implementation in early 2020, the rule was immediately challenged, and a Colorado federal judge halted implementation within the state —the rule, however, remains in effect in the rest of the country.

President Biden is likely quickly to direct the EPA and the Army Corps to revise the WOTUS rule once again. Whether Biden seeks to revert to the Obama-era definition or an entirely new standard is unclear. Whatever rule emerges, many commentators expect that it will be immediately challenged and that its enforcement will be tied up in the courts for years to come.

Conclusion

The above possible changes are the tip of the iceberg. President Biden is also likely to tackle various rules that were either revoked or weakened by the Trump administration, including opening public lands to drilling and extraction; various rules about mining operations, including limitation on debris discharges and coal ash waste ponds and holding areas; the National Environmental Policy Act and other rules and regulations governing federal infrastructure projects; various changes to the Endangered Species Act; and the reversal of an Obama-era rule that required certain braking system upgrades for “High-Hazards Flammable Trains.” In any event, the next time this column is published, it will surely be in a changing environmental landscape.

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Kyle R. Johnson

Environmental Law Update Editor: Kyle R. Johnson, Brown Rudnick LLP, 185 Asylum Street, Hartford, CT 06103, kjohnson@brownrudnick.com.