January 22, 2021

Biden Administration's Environment and Climate Change Executive Order Establishes Sweeping Directives for Amending Trump-Era Environmental Regulations, Addressing Climate Change and Permitting Infrastructure

5 min

President Biden issued a far-reaching executive order, "Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis," declaring that it is the policy of the new administration "to listen to science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change"; and to "prioritize both environmental justice and the creation of well-paying union jobs necessary to deliver on these goals." The EO, issued almost immediately after the inauguration ceremony, touches on virtually every major environmental issue and will have wide-ranging impacts, both on environmental regulation and permitting, and on infrastructure development.

The EO directs all executive departments and agencies to immediately review all existing regulations, orders, guidance documents, policies, or other agency actions adopted during the Trump administration and to "address [any such] actions that conflict with [the EO's] important national objectives." It is apparent that the Biden administration is poised to freeze or rescind pending, non-final actions that conflict with administration policy, and to revisit already-finalized ones with new rulemakings. In fact, the EO specifically targets several finalized, high-profile regulations for review and potential revision, including rules on vehicle emission standards, methane emission standards, hazardous air pollutants from electric utility units, and energy efficiency standards for buildings and appliances. In addition to pursuing these changes through agency rulemaking authority, the EO also states that the attorney general may use his prosecutorial discretion in the service of the EO's objectives by staying or disposing of any pending litigation that conflicts with its stated policies.

Beyond its broad rulemaking changes that cut across all agencies, the EO also reverses the Trump administration's position on a few narrower, hot-button issues. It places a moratorium on oil and gas leasing in the Arctic National Wildlife Refuge and restores the Obama administration's policy of not allowing drilling in sensitive areas of the Arctic waters and the Bering Sea. Citing climate change concerns, the EO also revokes the presidential permit that President Trump issued for the Keystone XL pipeline.

The EO also lays the groundwork for climate change to be considered at every stage of regulatory and development decision-making, with that issue animating every aspect of environmental policy. It requires that agency heads provide a list of Trump administration rules that may be reconsidered/revised, not only to the Office of Management and Budget (as is typical for any rulemaking change), but also directly to the Biden administration's national climate advisor. It requires agencies to consider the social cost of carbon before taking major actions and creates a working group to study and establish figures for agencies to use in these calculations. In a similar vein, it rescinds the Council on Environmental Quality's 2019 guidance on how to treat greenhouse gas emission in NEPA reviews. This change alone will dramatically impact the federal approval process for all major infrastructure projects.

Environmental justice is another notable policy focus of the EO. The order highlights environmental justice concerns at multiple points, which dovetails with President Biden's emphasis – outside the environmental context – on racial justice. Although there is no federal environmental justice statute, expect to see this issue addressed in various ways, including through permitting decisions, regulatory conditions, enforcement priorities, and prosecutorial discretion. The Biden EPA will likely focus more heavily on sources of pollution in low-income and minority neighborhoods and on how infrastructure development impacts those communities.

While it would be tempting, in a politically partisan atmosphere, to conclude that the new administration will simply reverse all or most of the previous administration's policies, the EO also speaks to revisiting and reviewing policies. It directs rescinding or revising them only where Trump administration actions conflict with the Biden administration's policies. Without a doubt, there will be many areas of conflict – such as the rules specifically mentioned in the EO. However, there are some areas, particularly with encouraging efficient infrastructure environmental reviews and permitting, where there may be some common policy objectives between the two administrations. It is noteworthy that the EO's articulation of policy mentions not only expected causes like climate change and environmental justice, but also "well-paying union jobs" and climate change mitigation measures. This could likely result in proposed amended rules, such as the CEQ's NEPA regulations, which attempt to strike a balance between actions aimed at economic recovery and encouraging renewable energy, while at the same time protecting disadvantaged populations. Stricter environmental reviews, with more detailed GHG analyses, could quickly cause delays in the development of traditional infrastructure, such as railroads, transit projects, and bridges. This reality could force some measure of compromise within the Biden administration with regard to these aggressive environmental policies.

President Biden did just about everything he could legally through executive order on day one, to lay the foundation for a bold agenda for other changes to come. While many of those changes must go through the notice-and-comment rulemaking process and will proceed at a slower pace, there is no doubt that the process of rescinding and replacing many Trump administration environmental regulations and guidance is well under way.