Wednesday, March 10, 2021
The Biden administration is seeking to reverse the Department of Justice’s (DOJ) controversial prohibition on the use of Supplemental Environmental Projects (SEPs) in civil settlements imposed by the Trump administration. The prohibition on the DOJ’s discretion to use SEPs in settlements of environmental cases was announced in a memorandum issued by Jeffrey Bossert Clark, Assistant Attorney General of the Environment and Natural Resources Division (ENRD) of the DOJ, on March 12, 2020. AAG Clark had expanded the rationale for disallowing the use of SEPs in new policy memoranda issued in his last days at the DOJ: “Guidance Regarding Newly Promulgated Rule Restricting Third-Party Payments, 28 C.F.R. § 50.28,” January 13, 2021, and “Equitable Mitigation in Civil Environmental Enforcement Cases,” January 12, 2021. AAG Clark’s position on SEPs was also the subject of the DOJ’s regulation promulgated in December 2020, 28 C.F.R. §
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A shift in administration at the state or federal level comes with regulatory changes and uncertainties. Already, the Biden administration has demonstrated it will have different environmental enforcement priorities and approaches than the previous administration. So what should the regulated community expect at the national level, as well as regionally?
Increased Environmental Inspections and Enforcement, But Also the Return to Supplemental Environmental Projects as a Settlement Tool
It is likely the Biden administration will adopt regulatory changes under the Clean Air Act and the Clean Water Act to employ more stringent regulatory programs. For example, as discussed in more detail here, the Biden Environmental Protection Agency (EPA) may reevaluate the previous administration’s guidance memo regarding regulating discharges to groundwater under the Clean Water Act. Changes to guidance documents and adopting new rules
TSCA/FIFRA/TRI
“Environmental Justice: Operationalizing TSCA to Fulfill Its Destiny,” By Lynn L. Bergeson For The American College Of Environmental Lawyers (ACOEL) Blog: The Biden Administration has embraced environmental justice with unprecedented gusto. In its July 2020 Plan to Secure Environmental Justice and Equitable Economic Opportunity, the Biden Administration sets out in broad terms how it intends to use an “All-of-Government” approach to “rooting out systemic racism in our laws, policies, institutions, and hearts.” Read the full article online.
EPA Issues Final Compliance Guide Addressing Surface Coatings Under PFAS SNUR: On January 19, 2021, EPA announced the availability of a final compliance guide that outlines which imported articles are covered by EPA’s July 2020 final significant new use rule (SNUR) that prohibits companies from manufacturing, importing, processing, or using certain long-chain per- and polyfluoroalkyl substances (PFAS) without prior EP
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Late last week, the Justice Department withdrew nine Trump-era policy and guidance documents that shaped how the Department’s Environment and Natural Resources Division (ENRD) enforced environmental law during the past several years. The memo, issued by Deputy Assistant Attorney General Jean Williams,
1 follows President Biden’s Day One executive order that directs federal agencies to immediately review and take action, as necessary any agency actions that conflict with the new administration’s “important national objectives” to confront climate change, prioritize environmental justice and protect human health and the environment.
Wednesday, February 17, 2021
It’s no secret that President Biden plans to prioritize action on climate change. During his presidential campaign, Biden identified climate change as one of his top four priorities, and announced he would seek to put the U.S. on a path towards “net-zero” greenhouse gas emissions by 2050. In the few weeks since his inauguration, President Biden has taken a suite of actions aimed at making good on that promise.
Overview
Within hours of his inauguration, President Biden had acted to bring the U.S. back into the Paris Agreement and signed Executive Order 13990, “
Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” Among other things, that order revoked a key permit issued for the Keystone XL oil pipeline and ordered a review of actions taken under the Trump administration. One week later, the Biden Administration hosted “climate day” at the White House, where he described a “governm