On November 7, 2020, Joe Biden became the projected President-elect of the United States. With an aggressive climate change plan that includes rejoining the Paris Agreement on the first day of his term, President-elect Biden and his administration will likely make significant changes to environmental, health, and safety rules and policies that will rollback Trump administration environmental actions and increase civil and criminal enforcement of environmental laws.

New Regulatory Rollbacks and Expansions

The Trump administration took deregulatory actions that weakened or repealed more than 100 environmental policies and regulations.  For example, President Obama’s Clean Power Plan, which set targets for greenhouse gas emissions for existing power plants, was repealed and replaced with the Affordable Clean Energy rule, which removed emission targets and directed states to determine the best course of action for regulating power plant emissions.  The Trump administration issued the Safer Affordable Fuel-Efficient Vehicles Rule, which authorized the Department of Transportation to establish fuel economy standards and preempted similar state regulations, including California’s regulations regarding greenhouse gas emissions for new passenger cars and light trucks.  The Trump administration’s Navigable Waters Protection Rule significantly narrowed the “Waters of the United States” Rule under the Clean Water Act.  Trump’s Environmental Protection Agency (EPA) repealed Obama-era methane and volatile organic compound emissions standards for new and existing oil and gas operations, and removed the most stringent requirements of newly promulgated revisions to the Risk Management Program rule.  The Occupational Safety and Health Administration (OSHA), meanwhile, largely stalled new rulemakings that had been initiated under the Obama administration, including the Process Safety Management (PSM) standard, and has so far declined to initiate a rulemaking in response to COVID-19 under the current administration.

The Biden administration will likely begin working immediately to rollback these Trump-era policies and regulations.  Under the “Biden Plan for a Clean Energy Revolution and Environmental Justice,” Biden commits to utilizing executive branch action and Executive Orders to implement a number of aggressive environmental rules that directly contradict the Trump administration actions, including developing rigorous fuel economy standards, reducing greenhouse gas emissions from transportation, and establishing methane emission limits for new and existing oil and gas operations.

It is important to note that there are several high-profile challenges to Trump administration environmental actions that are still pending in federal courts.  The Biden administration may seek to stay or remand the pending federal litigation in order to provide the relevant agencies with time to review the rule at issue and develop new positions.  The Biden administration could also potentially rescind the rule at issue through the Administrative Procedure Act or replace the rule.  However, any course of action will likely involve a lengthy administrative process that could lead to additional legal challenges.

In terms of workplace safety, during his campaign Biden made statements to labor groups that he would direct OSHA to immediately release and enforce an emergency temporary standard regarding COVID-19.  Biden indicated this rule would be aimed at reducing the spread of COVID-19 and likely set the stage for a subsequent permanent standard on infectious disease.  Separately, it is possible OSHA will resume work on developing and promulgating new worker safety rules such as updates to the PSM standard, as Democratic-leaning states have done in recent years.

Whether the Biden administration is likely to pass significant environmental and worker safety legislation depends upon the composition of the Senate, which will remain uncertain until the runoff elections for two Georgia Senate Seats are held on January 5, 2021.  If the Democratic candidates in both elections prevail, then the Democrats will gain control of the Senate.  If a Republican candidate prevails in either election, then the Senate majority will remain Republican.  Without a Democratic Senate majority, passage of such environmental legislation will face greater challenges.

Increase in Civil and Criminal Enforcement

Civil and criminal enforcement of environmental regulations declined sharply under the Trump administration as enforcement was left largely to the states.  However, such civil and criminal enforcement is likely to increase under the Biden administration.  For example, Biden’s Clean Energy Plan establishes an enforcement mechanism that would hold polluting entities accountable for their carbon pollution.  To address pollution’s disparate impact on communities of color and low-income communities, the Clean Energy Plan also provides that action will be taken against polluting entities that knowingly harm the environment or attempt to conceal environmental and health risks.  Under the “Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity,” not only will Biden revise and reinvigorate the 1994 Executive Order 12898 entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” he will also establish an Environmental and Climate Justice Division within the Department of Justice (DOJ).  Biden’s EPA and DOJ will likely be directed to pursue pollution violations to the fullest extent permitted by law as well as seek additional legislation in order to hold individuals personally accountable.

Time Left for Trump Action

Although it is unlikely that the Trump administration will obtain passage of significant environmental legislation before the end of its term, the Trump Executive Branch can still issue new environmental policies and reorganize environmental agencies and their leadership.  Reed Smith will continue to monitor the evolving environmental landscape and provide updates as they become available.