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Change Coming to EPA’s Environmental Policy What to expect from the incoming EPA head in environmental justice, clean air and water

HANK LACEY Michael Regan, North Carolina’s chief envi- Madden, the executive director of the Univer- for oil and gas facilities, which he regards as LAW WEEK COLORADO ronmental regulator, who was chosen by Biden sity of Colorado’s Getches-Wilkinson Center possibly “fairly expensive and burdensome for as the agency’s next administrator in Decem- for Natural Resources, Energy, and the Envi- the industry,” but also said he thinks there is a President-elect will face a daunt- ber 2020. They include an ongoing contro- ronment and a former undersecretary in the chance that a collaborative approach to regu- ing task in restoring the nation’s system of en- versy over the reach of the federal Clean Water Department of Energy. lation may arise. “There’s certainly opportuni- vironmental regulation and confronting a rap- Act and contamination of drinking water by The Obama administration relied on the ty for coordination and compromise,” he said. idly growing climate crisis after taking office. per- and polyfluoroalkyl substances (PFAS). Clean Air Act to tighten fuel economy stan- “I’ve seen that here in Colorado,” referring to Most pressing for the Biden team, and dards on motor vehicles and to impose emis- the state’s effort to implement the mandate of his Environmental Protection Agency, will be CLIMATE CHANGE sion limits on newly constructed or modified a 2019 bill that overhauled Colorado’s system addressing climate change, an undertaking While not an EPA job, first on Biden’s envi- stationary air pollution sources. Trump back- for regulating hydrofracking and fossil fuel ex- that began during the Obama administra- ronmental agenda will be a return to the Paris tracked on both. Trump has attempted to roll traction site pollutant emissions. tion but was abandoned amid the deregula- Agreement, the 2015 accord that committed back minimum gas mileage requirements — an Madden argues that achievement of cli- tory zeal of Trump and his two EPA bosses, signatory nations to achieve a maximum 1.5 effort challenged both by a group of 23 state mate objectives depends heavily on imposing and Andrew Wheeler. Another degrees Celsius rise in global average atmo- attorneys general that includes Colorado’s Phil a requirement that allows the government to priority will likely involve an increased focus spheric temperature above pre-industrializa- Weiser and a coalition of environmental pro- track actual greenhouse gas emissions. “To my on environmental justice. tion levels. American greenhouse gas emis- tection advocates — and to weaken so-called knowledge, there are very few, and none in the “Certainly, climate is going to be their sions are the second-highest on the planet, New Source Review permitting requirements. federal government that require monitoring of leading initiative,” said Jeffrey Davidson, a trailing only China, and Biden also vowed to Among the industries that EPA is likely to emissions,” she said. partner at Kilpatrick Townsend’s Washington, put the nation on a track to an economy that target in its work to reduce the nation’s contri- The Obama administration had imposed D.C., office and a 40-plus-year practitioner of produces no net greenhouse gas pollution and bution to climate change is the fossil fuel sec- a rule requiring oil and gas facilities to moni- environmental law. “I think environmental is fully powered by renewable energy by 2050. tor. “It’s no surprise that there’s going to be a tor and limit methane emissions, but Trump justice … will be the signature issue for the EPA’s role in achieving that goal will be focus on oil and gas,” Randy Dann, a partner discarded it even after three oil giants — BP, Biden administration.” crucial and will involve use of the country’s at Denver’s Davis Graham & Stubbs, said. He Exxon-Mobil, and Shell — asked him not to do Other complex environmental issues also principal air pollution law. “The Clean Air Act noted the Obama administration’s effort to so. “Restoring that right away would be huge. If await EPA under the expected leadership of is really the vehicle for that action,” said Alice develop a new source performance standard you’re going to drill, you should capture every- JANUARY 18, 2021 | 2

thing that comes out of the ground and account Water Act. Congress, when it enacted the law defects, cancer, decreased fertility, develop- great groundswell of support for an environmen- for it,” Madden said. She also warned that natu- in 1972, specified that pollution limits affect- mental disorders, liver damage and increased tal justice initiative,” Davidson said. ral gas can be part of the nation’s long-term en- ing waterways extend only to “waters of the risk of asthma and thyroid disease. It is widely The details are where the effectiveness ergy mix only if the industry takes the problem .” The Supreme Court, in two de- anticipated that Biden will move to regulate it of any environmental justice program will of that source’s greenhouse gas pollution seri- cisions released in 2001 and 2006, cast doubt more comprehensively, Davidson said. stand or fall. Madden pointed out that EPA ously, too. “If natural gas wants to stick around, on the meaning of the phrase. But enforcing a regulatory scheme that has not effectively used authority granted it they have to address their emissions problem,” Since then, the definition of that term has would reduce the presence of PFAS would be under federal civil rights laws to confront the she said. “If they do, it would be a less contro- been the subject of an enduring controversy. expensive. “If you were to make PFAS a haz- problem of disparate environmental impacts versial and cleaner fossil fuel.” EPA issued a rule that purported to give the ardous substance that might potentially trig- in low income neighborhoods, while the De- To help the agency achieve Biden’s objec- term a broad reach in May 2015, when it final- ger potential liability for anyone who releases,” partment of Justice under Trump has strove tives and assure coordination with the rest of ized the Clean Water Rule. Trump, however, Davidson said. “It won’t be easy as saying PFAS to eliminate settlement tools that can be used the government, former EPA administrator made a campaign priority of killing that regu- is a hazardous substance. Putting it on the to require polluters to compensate contami- Gina McCarthy and former Secretary of State lation during his 2016 campaign and, in April Safe Drinking Water Act standard is one way, nated communities. Nor has EPA’s internal and U.S. Senator John Kerry will be ensconced 2020, EPA backtracked. His administration’s but someone is going to have to pay for water environmental justice staff made much dif- in the White House to oversee the climate pol- new rule, called the Navigable Waters Protec- companies to deliver water with the extremely ference to date. “There’s EPA’s Office of Envi- icy imperative. “They have a lot of experience, tion Rule, sharply cut back EPA’s jurisdiction. low levels.” ronmental Justice, which was created in 1993, obviously, and I think they’ll be setting up Marc Yaggi, executive director of Water- Coal ash, too, looms as a regulatory chal- but it hasn’t done too much,” Madden said. their own policy to provide White House and keeper Alliance, said restoring the regulatory lenge for Biden’s EPA. Produced whenever coal CEQ level reviews,” Davidson said. He was re- definition of “waters of the United States” is is burned, the substance commonly ends up in EPA RESOURCES ferring to the Council on Environmental Qual- crucial for the ecological health of American landfills or impoundments. None of Biden’s environmental policy pri- ity, a panel appointed by the president that waters. “The definition is extremely impor- If not safely stored, and if released to the orities are likely to be achieved unless EPA is coordinates U.S. environmental programs. tant,” he said. “It’s the underpinning of the environment, coal ash causes profound dan- adequately staffed and provided with a budget The likely Biden climate agenda was de- entire .” Yaggi cited Arizona as ger to public health and aquatic ecosystems. sufficient to finance work on them. Since fiscal livered an administrative roadblock this week an example of the outcome that could result Litigation over a rule to regulate coal ash as year 2010 EPA’s budget has fallen by more than when EPA finalized a rule that excludes any if Trump’s restrictive approach to EPA regu- a hazardous substance under the Resource 12%, while the number of agency employees is industry-wide emissions source that emits less latory power prevails, saying the state lacks a Conservation Recovery Act issued by the down by nearly 3,000 in that period. Many of than 3% of the nation’s U.S. greenhouse gas regulatory mechanism to effectively control Obama administration and backtracking by the losses of personnel included senior agency pollution is to be considered “insignificant” . “When you see waterways no Trump’s EPA have left the future of coal ash staff, including scientists. under the section of the Clean Water Act that longer protected by the Clean Water Act, that regulation murky. Public health advocates Madden emphasized the critical nature the Obama administration used to support means there’s very likely a gap in protection and environmental protection organizations of that resources crunch, while Davidson said power plant regulation. The unexpected mea- from pollution in [w]aterways that Americans are likely to push for a more restrictive ap- Biden should not overlook the benefits of en- sure, say environmental groups, is an effort to rely on,” he said. proach after Regan takes control of the agency. trusting more of the nation’s environmental undermine Trump’s successor. “In the Trump On the other hand, the Clean Water Rule policy to the states and give consideration to administration’s latest midnight regulatory gift — which remains in effect in Colorado under ENVIRONMENTAL JUSTICE the best way to think about whether enforce- to polluters, the EPA is perverting the Clean Air a stay granted by a federal judge in litigation Biden has stressed the urgency of ad- ment of the law is effective. “Various state or- Act to ensure that no industry other than the launched by Weiser — was unpopular with vancing environmental justice to the top ganizations have been pleased with greater re- power sector ever has to cut its climate pollu- industry. Agriculture and energy interests, as of EPA’s agenda. spect and greater flexibility and greater respect tion,” said David Doniger, senior strategic direc- well as a smattering of states with economies “Any sound energy and environmental in providing for enforcement,” he said. “I do tor of the Climate & Clean Energy program at dependent on those sectors, sought to block policy must advance public health and eco- think that this EPA, and all EPAs, should take a the Natural Resources Defense Council. “EPA the regulation in federal court. Nevertheless, nomic opportunity for all Americans, in ru- harder look at what constitutes proper metrics cannot simply declare by fiat, contrary to the according to Davidson, Trump’s move to weak- ral, urban, and suburban communities, and to evaluate enforcement. Is it the number of science, that every other industry is too small en EPA’s authority under that law is nearly cer- recognize that communities of color and cases brought, the amount of fines?” to matter.” tain to be reversed by the Biden team. low-income communities have faced dispro- For Yaggi, EPA’s effectiveness under Biden The new administration’s climate agenda portionate harm from climate change and will be advanced in the aftermath of “slop- may run into opposition in Congress. Even OTHER ENVIRONMENTAL environmental contaminants for decades,” py” regulatory actions by Trump regulators. with Democratic control of both chambers, proclaims a campaign website. The president- “They’ve let their zeal for doing the bidding of there may be tenuous support for bold moves. PROBLEMS: PFAS AND elect has indicated he will create a division polluters outpace their attention to detail and “I don’t know whether there’s going to be suf- COAL ASH within the Department of Justice to oversee to the law,” he said. Davidson, meanwhile, said ficient legislative support,” Davidson said. ““I compliance with environmental justice direc- that, in his experience, it is reasonable to have think it’s going to be a very complicated and One of the most difficult policy challenges tives, reinvigorate EPA’s Civil Rights Compli- confidence in those chosen by the new presi- nuanced [for] Congress going forward.” Mad- that Biden’s EPA will almost certainly have ance Office and strengthen monitoring and dent to lead the agency. “These are people den is more optimistic, stressing that majority to deal with involves a ubiquitous class of notification requirements. who are doing their best to solve problems,” Democrats are likely to have learned from their chemicals called per- and polyfluoroalkyl sub- Madden thinks Biden is fighting the tide of he said. “They know what they’re confronting experience early in the Obama administration stances (PFAS). These compounds are found bureaucratic inertia in this arena. “The whole on the political side of life. They’re going to that it is better to move aggressively on policy that comes into contact with the substance; environmental justice movement is incredibly take a very measured, strategic, and thought- priorities than to be cautious. “At a minimum in common household products including important, and EPA has not done a good job on ful approach to addressing environmental the Dems have these two years,” she said. fabrics, non-stick products or cleaning prod- that,” she said. Nevertheless, Biden’s ideas to im- issues going forward.” • ucts; in factories; and in fire-fighting foams prove the situation are promising and may have — Hank Lacey, [email protected] WATER POLLUTION that contaminate groundwater. A 2018 report bipartisan support. “The society today in 2021, Among the most controversial topics that by the Centers for Disease Control found that with the issues of racial justice and systemic rac- will confront Regan is the reach of the Clean exposure to the compound can cause birth ism issues, I think there’s a great movement and