How Biden might change environmental enforcement

By Pamela King | 11/12/2020 01:44 PM EST

Get ready for a sea change in the Justice Department’s approach to environmental enforcement under the incoming Biden administration.

Department of Justice headquarters in Washington.

Department of Justice headquarters in Washington. Francis Chung/E&E News

Get ready for a sea change in the Justice Department’s approach to environmental enforcement under the incoming Biden administration.

Over the next four years, the president-elect is expected to take a dramatically different tack on addressing environmental violations — especially those rooted in new or revamped regulations, such as an anticipated rewrite on which wetlands and streams are subject to Clean Water Act protections.

"We’re certainly already seeing from the career staff at EPA, the Justice Department and other relevant agencies what I would deem a ‘Biden effect,’ which is they are anticipating or were anticipating a change in administration, and existing cases seem to be being pursued in a more expedited fashion and certainly there are many more new cases," said Sidley Austin partner Justin Savage, a former DOJ environmental lawyer.


"We expect that to continue."

The focus of the Biden administration’s enforcement efforts will largely depend on whom the president-elect selects to run both DOJ and the department’s Environment and Natural Resources Division (ENRD).

DOJ was among the agencies targeted in a transition memo released yesterday by climate experts and Obama allies. Kate Konschnik, director of the Climate and Energy Program at Duke University’s Nicholas Institute for Environmental Policy Solutions and a former DOJ trial attorney, recommended in it that the incoming administration pick leaders who prioritize protecting the environment and can foster cooperative relationships between ENRD and client agencies like EPA.

"Stories of career attorneys stepping off of cases or resigning since 2017 reflect unusually public displays of concern for current administration policies. Environmental enforcement is down and morale is low," the memo said. "In light of this, a successful climate strategy should be one that also reinvigorates enforcement, restores integrity to the department, and empowers career attorneys to help drive the climate mission forward."

Biden on Tuesday tapped Harvard University environmental law professor Richard Lazarus as part of the agency review team charged with shepherding DOJ’s transition (E&E News PM, Nov. 10).

Kelly Johnson, a partner at Holland & Hart and a high-ranking ENRD official during the George W. Bush administration, said she expects the Biden campaign to select DOJ candidates with solid reputations and experience running a law shop.

"If you have a situation where you need Republican support, it is a nominee who is not known as a flame thrower, someone who is willing to sit down and have discussions, who doesn’t have a lot of extremely controversial statements out there," Johnson said of the qualities of a potential Biden DOJ nominee.

Changes to DOJ’s approach won’t begin when Biden steps into the White House on Jan. 20.

"Enforcement shifts don’t happen overnight," said Baker Botts partner Jeffrey Wood, who was acting ENRD chief during the first two years of the Trump administration. "They take a lot of time, because your docket is determined based on the cases that are at issue at any given point in time."

Biden will first need to get his department appointees in place, and then he’ll need to request that Congress fund the department’s goals.

DOJ will then need to wait for EPA to get new cases rolling.

No matter how funding and staffing shake out, Biden has already made clear that he will be emphasizing climate and environmental justice across his administration — including at DOJ.

"How that cashes out on the ground in the regions with investigators looking for violations, it’s hard to guess until you see infrastructure being put back in place," said Justin Pidot, co-director of the University of Arizona’s environmental law program and a former ENRD attorney.

Here are three changes that the Biden administration is expected to implement at DOJ:

Expect an uptick in enforcement

Under the Trump administration, the number of environmental cases DOJ pursues has dropped precipitously.

The trend follows a decline that started during the Obama years, but a recent study by University of Michigan law professor and former DOJ environmental attorney David Uhlmann found that the first two years of the Trump administration brought 70% fewer Clean Water Act prosecutions and 50% fewer Clean Air Act cases.

DOJ has said that the paper "confuses quantity for quality" (Greenwire, Oct. 22).

At least some of that trend may be attributed to the Trump administration’s preference to allow states to handle their own environmental prosecutions.

"Without question, during this administration, putting aside everything else, there was much more deference given to states," said Beveridge & Diamond principal John Cruden, former assistant attorney general of ENRD.

Under Biden, Cruden added, "that’ll change almost immediately."

Even without pursuing new cases, the Biden administration could send strong signals to the regulated community simply by making clear its intent to be tougher on polluters.

"I do think we’ll see more of a focus on self-evaluation audits and self-disclosures," said Doug Green, a partner at Venable and chair of the firm’s environmental group.

Those tools allow companies to analyze their own activities and report violations on a voluntary basis, allowing them to duck heavy civil penalties.

Sam Sankar, senior vice president of programs at Earthjustice, said he expects DOJ’s career staff to greet the Biden administration with open arms after four years of Trump’s leadership.

"It’s not even the policy preferences," Sankar said. "It’s the basic order and respect for the way government works."

SEPs may be resurrected

Under Biden’s leadership, DOJ is largely expected to breathe new life into an enforcement tool that allows polluters to carry out EPA-approved projects in exchange for lower fines.

ENRD eliminated "supplemental environmental projects," or SEPs, in civil settlements with a memo earlier this year — to the confusion of environmental groups, enforcement officials and polluters with whom the tool was popular (Greenwire, March 13).

"I think that’s just going to go by the wayside," said Nova Southeastern University law professor Joel Mintz.

Undoing the Trump administration’s SEPs policy wouldn’t require much legwork.

Former ENRD attorney Tom Lorenzen said he expects one of the first actions Biden’s ENRD could take would be to revisit the legal analysis for prohibiting SEPs, which says officials who receive payments to the government must submit those funds to the Treasury Department.

"If they believe that that legal analysis is faulty or that it is permissible to reintroduce SEPs, then they will," said Lorenzen, who is now head of the environment and natural resources practice at Crowell & Moring.

A reversal would render moot a lawsuit filed last month by environmental groups over the elimination of SEPs (E&E News PM, Oct. 8).

Wood of Baker Botts said he also wouldn’t be surprised to see a quick turnaround on SEPs.

"The current administration has made a good case for why SEPs can be problematic," he said, "but a new team coming in is likely to take a different approach."

Environmental justice will become a bigger focus

Biden has laid out lofty goals for how DOJ under his leadership would address pollution that disproportionately affects low-income neighborhoods and communities of color.

In a plan released during his campaign, Biden said he would establish an Environmental and Climate Justice Division at DOJ. Among other things, Biden said the division would increase enforcement, address legacy pollution and work in partnership with EPA’s Office of Civil Rights.

What remains to be seen, observers said, is how the Biden administration plans to structure the new division and allocate resources to it.

"I have a lot of practical questions about it," said Johnson of Holland & Hart.

At the very least, the Biden administration is sending strong signals that it will be focused on environmental justice for the next four years, Sidley Austin attorney Simone Jones said in remarks Tuesday directed toward regulated entities.

"The Biden administration will scrutinize approvals in light of social justice concerns when granting permits, licenses and other approvals across the range of federal environmental statutes," she said. "Have you assessed your business plans in light of this change?

"I cannot stress enough that the time to review your projects, your permits is now."

Jones pointed to a ruling this year by the 4th U.S. Circuit Court of Appeals that struck down an air permit for a compressor station along the Atlantic Coast natural gas pipeline (Greenwire, Jan. 7).

She noted that the decision came long before the killing of George Floyd by police officers reinvigorated the Black Lives Matter movement and well before Biden’s election.

"Given the momentum of these events," Jones said, "it’s all but guaranteed that we will continue to move in this direction."