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Environmental priorities and regulation under the Biden administration

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Michael j quinn

How will environmental regulations evolve under the new administration? What is environmental justice? Is my business more likely to be inspected by the state or the federal government than it was a year ago? How should I prepare for the upcoming changes? All the right questions and some answers are available if you know where to look.

Anyone interested in the changes the Biden administration is making to environmental regulations received a tool on January 21, 2021 when Executive Order (“EO”) 13,990, Protecting Public Health and the Environment and Restoring Science to Fight against the climate crisis, has been published. . The IB sets the political priorities of the new administration, including identifying the policies of the previous administration that it intends to modify or even abandon.

As a threshold, the OE explains that executive agencies are responsible for evaluating the policies and actions of agencies under the Trump administration in order to identify inconsistencies with the environmental policies of the Biden administration, and to consider to suspend, revise or cancel these previous policies and actions. The OE also immediately rescinds a number of executive agency decrees and policies relating to the environment issued under the Trump administration.

Several objectives requested in the OE have already been implemented. For example, the OE has asked the Home Office to impose a temporary moratorium on oil and gas rentals in the Arctic National Wildlife Refuge (“ANWR”). On June 1, Interior announced that it had “identified flaws in the underlying record of the decision supporting the leases, including the lack of analysis of a reasonable range of alternatives,” and was therefore suspending the leases. ANWR oil and gas companies, pending a new environmental review. This decision is being challenged in court.

The OE requests the revocation of the permit granted for the construction and operation of the Keystone XL pipeline intended to transport oil from the Canadian tar sands fields to the United States On June 9, the Canadian firm that intended to build the pipeline announced that it was terminating the project.

Other high-profile issues regarding climate change, greenhouse gases, vehicle fuel economy standards, Bears Ears, and Grand Staircase National Monuments are specifically identified in the Jan. 20 EO for consideration. immediate.

The OE recognizes that changes in environmental priorities or regulations can immediately affect pending litigation. Therefore, the OE provides that, where appropriate, in pending federal cases, the Department of Justice is authorized to notify the court of the measures taken in accordance with the OE and to request the suspension of the court or to settle this dispute. .

There are many other actions disclosed in the OE that may not attract the same level of attention from the popular press, but which advocacy groups, the regulated community and environmental practitioners are watching closely.

An increase in the environmental enforcement of issues ranging from wetlands to the generation, storage and disposal of hazardous waste, to violations of the Clean Water Act and the Clean Air Act is expected with the change of ‘administration. Particular emphasis will be placed on issues of environmental justice, as clarified by the OE. The Environmental Protection Agency explained that environmental justice is “the fair treatment and meaningful participation of all people, regardless of race, color, national origin or income, in the development, implementation and enforcement of environmental laws, regulations and policies. “The OE orders that” the federal government … must advance environmental justice. “

Given these changes, what should regulatees do now to prepare for the new priorities and practices? Certainly make sure that relationships with federal and state regulators are in place. These government officials make their priorities known in various fora, and it is essential that regulated entities keep up to date with the latest information released. Perform a new review of existing environmental management systems to ensure they are up to date and to ensure continued compliance with all applicable laws and regulations. Be sure to review past environmental compliance audits to confirm that all identified deficiencies have been corrected, as well as to determine if further compliance audits are appropriate. And of course, the regulated community must plan and be prepared to respond appropriately to an inspection. All of these actions involve privileges and legal rights which should be carefully considered with the advice of a lawyer.

The Biden administration has made no secret of the types of actions it intends to take in various environmental areas and is currently implementing those actions. Potential changes are no secret and the regulated community must be prepared to respond thoughtfully and quickly.

Michael Quinn is Managing Director of McLane Middleton’s Portsmouth office and a member of the firm’s administrative law and litigation departments. He can be reached at (603) 334-6925 or [email protected]