The United States Environmental Protection Agency (U.S. EPA) under the Trump administration generally deferred to the states when it came to determining when to prosecute environmental enforcement actions. Based on action taken by the Biden administration, U.S. EPA will be changing to a more aggressive federal-led approach.
Michael Regan, nominated to be the new U.S. EPA Administrator, has a record of strong and aggressive enforcement of environmental regulations and policies. As secretary of the North Carolina Department of Environmental Quality (NCDEQ), he led an agency that greatly increased inspections and level of fines leveed for violations. It is safe to assume he will bring a similar record to the U.S. EPA. Biden’s Department of Justice (DOJ) has removed the barriers to its enforcement discretion erected during the Trump era, which will likely lead to the DOJ being more involved in EPA enforcement actions.
The regulated community would be wise to prepare for the coming changes. The following highlights a few things to consider.
Environmental Justice (EJ) is expected to form the basis of much of the Biden Administration’s approach to enforcement. Traditionally, most of the regulated community has only considered EJ issues when the U.S. EPA or the states have raised the issue during review of permit applications. It will likely benefit companies to consider actively addressing EJ issues that could be associated with their operations and that will be raised during permitting efforts for new facilities or expansion of existing facilities. They should be prepared to address tougher questions from U.S. EPA, state regulatory agencies, and local EJ advocacy groups when it comes to the potential environmental impact from the proposed new or expanded facilities. Executive Order 14008, Tackling the Climate Crisis at Home and Abroad, issued January 27, 2021, directs U.S. EPA to increase enforcement of environmental violations that have a “disproportionate impact on underserved communities.” U.S. EPA will be developing a program to collect real-time pollution data and notify affected communities of the environmental impacts. The DOJ is also required to work with U.S. EPA and others to develop an EJ enforcement strategy.
The regulated community also needs to take a fresh look at their current environmental compliance programs and determine if they are sufficient to address their permit and regulatory compliance obligations. Companies need to make sure that all compliance auditing efforts are up to date and inspection records are complete. This is especially true for any companies that have had to modify their procedures due to the pandemic. This is a good time to thoroughly evaluate the scope and effectiveness of existing compliance practices. It is vital to train employees to know how to respond during a federal inspection of the facility, including all of the facility’s applicable permitting and recordkeeping obligations. Practices found acceptable to your state and local regulators may no longer be acceptable to U.S. EPA inspectors.
Companies would be well served to identify which regulatory programs most affect their business and to develop a proactive mechanism for tracking pending changes and evaluating the potential operational and liability impacts that could result. Regulatory and policy/interpretation changes can be expected to be frequent and substantial in scope. Many of the regulatory approaches implemented by the Trump administration are being reviewed and could be withdrawn. Although new laws may be difficult to pass with the Senate being split between Republicans and Democrats, the new administration is expected to adopt substantially different policies and regulatory interpretations that can be implemented through executive branch actions without any confirmation from the legislative branch. These changes in policy and interpretation have the potential to impact the regulated community as much as new major legislation.