A Return to Regulation?

The prospect of a Biden Administration signals the likely return to active and aggressive regulation of environmental matters. In a fashion similar to the Trump Administration’s approach to Obama-era regulations, the Biden Administration has already vowed to not only reverse Trump-era de-regulation but go beyond the Obama Administration’s regulatory efforts.

Perhaps the most glaring example is addressing what the Biden-Harris Transition web-site calls the “existential threat of climate change.” Mr. Biden promises to “recommit the United States to the Paris Agreement on climate change” and to “go much further than that” by “lead[ing] an effort to get every major country to ramp up the ambition of their domestic climate targets.” Indeed, Mr. Biden pledges to “put the United States on an irreversible path to achieve net-zero emissions, economy-wide, by no later than 2050.”

The Paris Agreement calls for “holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels” through nationally determined contributions (NDC) to carbon emission reductions. The United States’ NDC was a 26-28 per cent reduction below its 2005 level by 2025. According to EPA, gross GHG emissions were reduced between 2005 and 2018 from 7,392 MMT CO2 Eq. to 6,677 MMT CO2 Eq.

It is unknown at this time to what extent Mr. Biden will “ramp up” the United States’ already ambitious climate targets or exactly how Mr. Biden intends to achieve the “ramp up.” He has stated that he would invest billions in clean energy development, that he would transition away from the oil industry by 2050, and that he would phase out or end fracking on federal lands. It is also likely that Mr. Biden would reverse the Trump Administration’s roll-back of the oil and gas sector methane rule.

Another example relates to environmental justice. Mr. Biden states that he wants to “ensure that environmental justice is a key consideration in where, how, and with whom we build” the clean energy infrastructure and go about “righting wrongs in communities that bear the brunt of pollution.” EPA defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

Mr. Biden does not provide specifics but does state that a Biden Administration will create “good, union, middle-class jobs in communities left behind,” presumably in clean energy endeavors. The creation of jobs in the clean energy sector may be how he intends to right the wrongs in potentially over-polluted communities, but it is more likely that there will be a greater push to limit or restrict industrial development in such areas.

There are numerous other Trump-era executive orders and regulations that a Biden Administration will likely address. As to the executive orders, they are easily reversed and Mr.; Biden has signaled he plans to do so. As to promulgated regulations, EPA must proceed through the notice-and-comment requirements imposed by the Administrative Procedure Act. However, regulations that are finalized in the last days of the Trump Administration may be subject to repeal under the Congressional Review Act, which was used in 2017 to repeal several Obama-era regulations. Although there is much speculation at this time, it is likely that the de-regulatory agenda pushed by the Trump Administration will be replaced with a re-regulatory agenda under a Biden Administration. To ensure some growth opportunities remain, industrial concerns will have to oppose the Biden agenda as assertively as the environmental groups opposed the Trump agenda.