Biden Administration to Review Environmental Regulations, Policies; Revokes Some Trump Executive Orders on Energy Infrastructure

On January 20, 2021, President Joe Biden issued an executive order, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The order directs executive agency heads to review hundreds of agency actions implemented during the Trump administration, including more than 120 related to energy and the environment. In addition, the order suspends or revokes, in whole or in part, nearly one dozen executive orders issued by the prior president directly tied to energy infrastructure.

A list of the agency actions that are under review include the following.

  • Environmental Protection Agency (EPA): The new administration will review 48 EPA regulatory actions issued under President Donald Trump covering each of the major statutes EPA administers, including EPA’s policy and technical amendments to the oil and gas industry new source performance standards under the Clean Air Act, the recent significant contribution finding for greenhouse gas emissions under the act, the revised definition of the Waters of the United States jointly issued by EPA and the U.S. Army Corps of Engineers under the Clean Water Act, and EPA’s recent transparency in science
  • Council on Environmental Quality (CEQ): The new administration will review the Trump administration’s revisions to CEQ’s National Environmental Policy Act (NEPA) regulations, which states and environmental groups have challenged. Revisiting these revisions is a priority for environmental justice advocates, who contend the revisions limit the ability of minority communities to participate in the permitting process.
  • Department of Justice (DOJ): The new administration will also review DOJ’s Environment Division final rule “Prohibition on Settlement Payments to Non-Governmental Third Parties,” which prohibits including provisions in settlement agreements directing or providing for a payment or loan to a nongovernmental person or entity that is not a party to the dispute, except in defined circumstances.

The new administration’s review of energy/environmental actions span several federal departments including Agriculture, Commerce, Defense, Energy, Interior, and Transportation and address an array of issues, including pipelines, resource development on federal land including the Arctic National Wildlife Refuge, national monuments, treatment of endangered species, and energy efficiency standards. The order also reconstitutes an Interagency Working Group on the Social Cost of Greenhouse Gases, with direction to develop metrics the administration would use to monetize costs associated with greenhouse gas emissions.

The revoked executive orders had been part of a push by the Trump administration to speed permitting for infrastructure projects, and include the following.

  • Executive Order 13766 of January 24, 2017, Expediting Environmental Reviews and Approvals for High-Priority Infrastructure Projects: This order allowed CEQ to designate certain infrastructure projects as “high priority” that would allow CEQ to set deadlines for permit milestones to streamline environmental reviews. It was intended to expedite the review of new federal permits or easements, including those necessary to build large pipeline projects such as the Dakota Access Pipeline, which required an easement from the U.S. Army Corps of Engineers to cross Lake Oahe in South Dakota.
  • Executive Order 13807 of August 15, 2017, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects: This order extended the goal of streamlining environmental reviews to all infrastructure projects. It created the One Federal Decision doctrine for federal agency cooperation on environmental review and permitting for major infrastructure projects. It also directed agencies to complete the NEPA process within an average of two years and then expedite permitting following the issuance of a Record of Decision under NEPA.

President Biden also ordered a 90-day suspension of Executive Order 13920 of May 1, 2020, Securing the United States Bulk-Power System (BPS), and directed the Secretary of Energy and Director of the Office of Management and Budget to jointly consider whether to recommend a replacement order. Executive Order 13920 called for the Department of Energy to develop and publish rules and regulations prohibiting certain acquisitions, import, transfer, or installation of bulk-power system components where there is a credible threat that could compromise the BPS. A prior Sidley alert on Executive Order 13920 is located here.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.