On his first day in office on January 20, 2021, President Biden signed an Executive Order titled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (the Order). The Order directed federal agencies to immediately begin a review of federal regulations and regulatory action over the last four years. The Order directed agency heads to consider revision, rescission, or suspension of regulations rather than directing any particular course of action. However, the Order illuminates the Biden Administration’s priorities with respect to the regulatory landscape for energy and the environment.
The Order’s Policy Statement
The policy statement in the Order sets the tone for environmental regulation. “It is, therefore, the policy of my Administration to listen to the 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; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.”
The language in the policy statement is significant because it indirectly identifies regulated industries likely to be affected by policy changes in this presidential administration. Those in the energy industry, including entities with coal, oil, and natural gas projects and emissions-producing entities, will likely see a shift in federal regulation.
Four Categories for Immediate Review
The Order identifies four categories of regulations that must be considered by specific dates. First, the Environmental Protection Agency (EPA) must consider the source performance emission standards for new, reconstructed, and modified sources in the oil and natural gas sector by September 2021. Second, the EPA and the National Highway Traffic Safety Administration must consider the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program by April 2021, and the SAFE Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks,” by July 2021. Third, the Department of Energy must consider four regulations related to energy efficiency, conservation, and improvements, most of which major revisions must be submitted by March 2021 and the remaining by May or June 2021. Fourth, EPA must consider national emissions standards for hazardous air pollutants (like coal- and oil-fired electric utility steam generating units) by August 2021. Additionally, EPA must consider, two regulations related to transparency in the Clean Air Act and other Significant Regulatory Actions, as soon as possible.
Revocations, Suspensions, and Rescissions
The Order revoked or suspended the following executive actions over the past four years.
Revoked Executive Orders:
- Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects
- Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” (WOTUS) Rule
- Promoting Energy Independence and Economic Growth
- Review of Designations Under the Antiquities Act
- Implementing an America-First Offshore Energy Strategy
- Promoting Energy Infrastructure and Economic Growth
- Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities
- Efficient Federal Operations, except for sections 6, 7, and 11
- Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects
Suspended Executive Order:
- Securing the United States Bulk-Power System (90-day suspension)
Revoked Presidential Memorandums:
- Promoting Domestic Manufacturing and Job Creation Policies and Procedures Relating to Implementation of Air Quality Standards
- Promoting the Reliable Supply and Delivery of Water in the West
- Developing and Delivering More Water Supplies in California
Revoked Presidential Permits:
- March 29, 2019 Keystone XL Pipeline Presidential Permit
The Order directed the Council on Environmental Quality to rescind its 2019 draft guidance on National Environmental Policy Act (NEPA) and Greenhouse Gas Emissions, and instead update its 2016 Final Guidance document on the subject.
Other Regulatory Action
The Order also directed a number of other considerations across the EPA, Department of Interior, and interagency efforts and cooperation.
- Section 2(c) directed the Administrator of the EPA to specifically consider: (i) emissions guidelines for methane and VOCs, and (ii) proposing a Federal Implementation Plan for California, Connecticut, New York, Pennsylvania, and Texas (states that failed to submit SIPs for National Ambient Air Quality Standards).
- Section 3 of the Order directed the Secretary of the Interior to consider whether national monument boundaries should be revised.
- Section 4 placed a temporary moratorium on federal government implementation of the Coastal Plain Oil and Gas Leasing Program.
- Section 5 established an Interagency Working Group to assess the social cost of carbon, nitrous oxide, and methane to estimate monetized damages associated with increases in greenhouse gas emissions. The Working Group is to provide recommendations to the President by September 1, 2021.
Subsequent EPA Request to Pause All Litigation for Trump-Era Rules
The Order identified that the Attorney General may seek a stay or otherwise dispose of litigation until completion of the processes described in the Order. One day after the Order, on January 21, 2021, the EPA requested the Department of Justice to seek abeyances or stays in all pending litigation on EPA regulations promulgated between January 20, 2017 and January 20, 2021.
The Biden Administration’s Order identifies key areas in which there is likely to be federal regulatory change. Many of the directives focus on the energy sector. Directives that may affect various industries also include potential changes to the WOTUS rule and NEPA guidance. Regulated parties should carefully monitor upcoming developments as they may affect projects pending approval and upcoming applications. For assistance in understanding how this Order may impact your business, industry, or project, please feel free to contact a Downey Brand attorney you regularly work with, or any of the attorneys throughout our firm.