March 22, 2021

Emily Richardson

The move toward tighter environmental standards

The transition from a Republican Administration to a Democrat Administration usually comes alongside a change in priorities. Some sectors of the national economy are always going to be impacted by political change more than others. Environmental compliance is a case in point.

Joe Biden plans to undo many of the changes enacted by his predecessor. People working for corporations and businesses that are likely to be impacted by any new legislation need to pay attention. This article will review some of the key things related to environmental protection that the new administration is expected to prioritize.

Background of the National Environmental Policy Act

Congress enacted the National Environmental Policy Act (NEPA) in 1970. The NEPA is often considered to be a part of the foundations of environmental law in the US. The legislation required federal agencies to conduct environmental impact assessments and environmental assessments for any major infrastructure project.

The last four years under the Trump administration saw a move towards reduced government oversight of environmental matters. The administration, supported by Congress, amended the National Environmental Policy Act and other pieces of environmental legislation. Moreover, under the Trump Administration, criminal enforcement of EPA violations also hit a 30 year low.

On January 21, Biden directed federal agencies to review rules regarding carbon emissions and clean air. Biden also set out to strengthen the NEPA through the following actions:

• Signing Executive Order on Tackling Climate Change at Home and Abroad: There are many provisions to this order. Among other things, it directs the Office of Management and Budget and the CEQ to ensure that federal infrastructure investment reduces climate pollution. Furthermore, it requires federal permitting decisions to consider the effects of greenhouse gas emissions and climate change. Here is a complete overview of the executive order.

• Revoking Executive Order 13783: Executive Order 13783 rolled back many climate and environmental protections. It favored the interest of fossil fuel development.

• Revoked Executive Order 13807: Here is a full overview of Executive Order 13807. Revoking the order will do things like remove provisions setting a two-year review process for environmental impact assessments.

Alongside a focus on new legislation, we can probably expect an increase in the number of prosecutions by the Environmental Protection Agency (EPA) for violations at the federal level. Environmental monitoring efforts will likely also increase.

The EPA is likely to focus on a range of areas. That might include a focus on environmental justice, increased attention on the impacts of disposal plastics, the return of wetlands enforcement, and an emphasis on FIFRA enforcement.

The Biden administration is also focusing on other environmental initiatives. For example, they are looking at power plant carbon rules and reviewing the Clean Air Act Analysis. Furthermore, the Clean Air Act will require large refineries and other facilities to be regulated under the maximum toxic air standards.

Increased regulation, specifically around air quality, will require many companies and corporations to review and potentially improve their emissions monitoring and testing. Of course, what businesses and corporations will need to do to prepare for change will vary. We’ll explore this theme in the next section.

How Can Businesses and Corporations Prepare for Change?

As a representative of a company operating in a regulated industry, it’s important to keep up to date on changes in legislation. You need to understand the implications of any changes and understand what initiatives are being pushed forward so that you can prepare accordingly.

The bullet points below list six considerations that should be top of your mind at the moment.

• Review your compliance data: You can obtain relevant information and data through public databases. If needed, you can ask for information through a Freedom of Information Request (or the equivalent from your state).

• Be prepared for increased enforcement: The best way to prepare for any changes in enforcement is to ensure compliance with relevant regulations. You can mitigate potential points of conflict by engaging with and monitoring the concerns of the communities that surround your facilities.

• Maintain relationships with regulators: Trust is an important factor when compliance issues arise. If you don’t have relationships in place with regulators, it’s time to build bridges and open lines of communication.

• Stay up to date on new developments. You can expect many changes over the next 12 months as the Biden administration attempts to implement its policy goals. It is important to stay up to date with any trends that will impact your sector. Seek advice from your political representatives, enforcement agencies, trade bodies, legal advisors, etc.

• Consider ways in which your company can achieve climate goals. One of the key policy initiatives for this administration is mitigating climate change. The administration will focus its efforts on reducing greenhouse gas emissions across all sectors of the economy. Explore ways you can reduce greenhouse gas emissions on your facilities or through your supply chain. Improved environmental monitoring and remediation policies will undoubtedly be part of this solution.

• Invest in new equipment: An increase in enforcement and potentially stricter regulations might necessitate investment in new equipment for your site. For example, an update to continuous emissions monitoring systems will be vital for some businesses. Alternatively, the implementation of carbon capture and storage solutions will be vital for other businesses.

You’ll probably find as you review that list that you are already taking the appropriate actions. Most companies not only abide by existing environmental regulations but outperform the minimal standards. If that is the case, then great.

Regardless of your situation, it’s probably a good time to conduct an appraisal of your approach. It’s better to be safe. Prioritize engagement with communities that surround your plants to mitigate the risk of future conflict. Or, if you have a difficult relationship with those communities, at least ensure you have the necessary policies in place to deal with issues.

Moreover, monitor political and legislative developments that are likely to impact your industry. It’s important to understand whether the rhetoric will align with legislative actions and increased enforcement, so you can anticipate change and make preparations accordingly.