With the 2020 election now called, though yet to be conceded, questions abound as to what the environmental regulatory landscape may look like under a Biden/Harris administration. For California, we don’t expect much of a change from the well-ensconced “Resistance.” Nationally, however, we should not be surprised to see many California strategies and priorities begin to sweep across the national landscape.
Undoing the Old; Redoing the New
Much of the Trump regulatory agenda was admittedly premised on undoing the Obama regulatory agenda. The two most glaring examples of this are in the arenas of the Clean Water Act and the Endangered Species Act. The Trump Administration successfully proposed and finalized multiple rules under each act. All of which, however, remain subject to litigation challenges. It is unclear at this point whether the Biden/Harris Administration will put its weight behind the court challenges to kill the new enactments or will rewrite the rules . . . or both.
Trying to define what is and is not a “water of the United States” for purposes of regulation under the Clean Water Act has vexed administrations, Congress and the Supreme Court for decades, often with very real political implications for election cycles. The Trump Administration successfully, at least in the administrative arena, undid the Obama “Clean Water Rule” and promulgated its own “Navigable Waters Protection Rule.” Litigation pervaded every phase, and still does. Observers labeled the prior rule a more expansive regulatory framework and the latter rule much more narrow. For example, most ephemeral streams regulated under the Obama rule will not be subject to federal oversight under the new rule. It will be interesting to see whether the Administration-elect merely continues the back-and-forth ping-pong volley and works to reinstate the Obama rule, or pursues a new approach.
Similarly, as to protecting imperiled species and their habitat, the Trump Administration administratively completed multiple regulatory enactments with potentially broad-sweeping implications nationwide. The changes impact foundational areas such as the designation of critical habitat and interagency cooperation authorizing take of protected species. But litigation remains pending. Many eyes will be on who is appointed Secretary of the Interior and Director of the U.S. Fish & Wildlife Service as to the regulatory priorities here.
Early reports on transition team appointments, particularly at the Environmental Protection Agency, welcome many familiar names from the Obama era as well as high-level executives at the major environmental organizations.
Climate, Climate, Climate
There is no doubt that climate change will dominate the Biden/Harris regulatory agenda, and California will most certainly be their model. Express promises from the campaign trail to rejoin the Paris Climate Accord as well as consistent and repeated speculation that Mary Nichols, chair of the California Air Resources Board—command central for California’s climate change regulatory juggernaut—may be the front-runner to be appointed Administrator of the U.S. Environmental Protection Agency bear witness to this inevitability.
As with all things, however, the yet-to-be-determined control of the Senate looms large as to the breadth and reach of the Administration-elect’s climate agenda. Although a top priority for the Obama Administration, Democrats have been unable to coalesce around, let alone adopt, meaningful climate change legislation at the federal level. The second of the Obama Administration’s primary regulatory accomplishments, along with adoption of the Clean Water Rule, was the Clean Power Plan. The Trump Administration was widely criticized for regulatorily repealing the plan, even though the Supreme Court blocked its implementation in early 2016.
Efforts to regulate greenhouse gases and other climate change adaptation and mitigation efforts have largely been restricted to enactments under the federal Clean Air Act; however, observers on all sides concede that the Clean Air Act is ill-equipped to provide meaningful regulatory mechanisms for a global phenomenon such as climate change. Air quality issues targeted by the Clean Air Act are very much localized and contained within regional air basins. Addressing local problems through local regulatory mechanisms is not a construct for a meaningful climate action plan at the global scale.
National Environmental Policy Act
Comprehensive revisions to the National Environmental Policy Act (NEPA) by the Trump Administration have also been a favorite target of those likely to have voice and influence in the Administration-elect. Over the summer, new NEPA regulations were promulgated by the Council on Environmental Quality (CEQ), essentially the White House’s own mini-EPA that has long been given NEPA oversight. The NEPA revisions are sweeping and comprehensive. Taken as a whole, they read as if the long-promised infrastructure legislative program was a reality and the Administration was seeking to streamline regulatory breadth and time frames for such projects. But the revisions were not limited to such projects and were quite a regulatory boon for the private sector, especially for large-scale infrastructure projects (e.g., transportation and energy) that require federal funding and/or approvals. As with so many of the current administration’s environmental reforms, the NEPA regulations are also subject to active litigation by 23 state attorneys general, including California’s Xavier Becerra. Undoubtedly priority one for the incoming CEQ chair will be undoing those reforms, regardless of the litigation.
Conclusion
Given the results of the 2020 election, California will likely be emboldened to not only continue but expand its regulatory reach and national influence, especially as to climate change. But no longer having to be the point of the Resistance spear might provide an opportunity for California to be more thoughtful in meaningfully advancing effective policy balanced against economic productivity, as opposed to the distraction of opposing and litigating all things Trump.
As the administration-elect takes shape, Manatt will be providing perspectives on how your business may be impacted. For more information, please visit our Election 2020 Hot Topics page.