A new US presidential administration brings new priorities across various areas and industries, including regulation and enforcement of activities that affect the environment. With President-Elect Joe Biden expected to assume the presidency on January 20, 2021, there are a number of considerations for companies tracking potential changes to the law governing the use of chemicals and antimicrobials.
- Possible climate change modifications could include regulations of greenhouse gas emissions for existing power plants (similar to the Obama Clean Power Plan, which was replaced by the Trump Affordable Clean Energy Rule). A White House Office on Climate Change may also be established. Major climate change legislation would likely require Democratic control of both chambers of the US Congress.
- President-Elect Biden has previously indicated that he would rejoin the Paris Agreement on his first day in office.
- Additional climate change measures may be achieved via regulation of new oil and gas operations, and by ending fracking on federal lands (although not more generally).
- The new administration may withdraw certain pending climate change challenges, and even change litigation positions in the climate-change cases to move from defending the oil companies to supporting the cities and counties.
- President-Elect Biden may take steps to require corporate disclosure of greenhouse gas emissions (GHGs) and climate risks (something that is increasingly being done on a voluntary basis by many companies).
- President-Elect Biden might approach auto manufacturers that previously agreed to meet California’s emissions requirements and worked out something on the transportation side. This could potentially be in the form of an executive order, or other relatively near-term action that he could pursue.
- In his efforts to obtain environmental justice, President-Elect Biden appears to be focusing on chemical regulation, including per- and polyfluoroalkyl substances (PFAS) and the Toxic Substances Control Act (TSCA). In the short term, it is likely his administration will focus on “community notification” of chemical uses (like the Emergency Planning and Community Right-to-Know Act), although the interplay with that statute is not entirely clear; and a possible revival of some proposed rules, such as trichloroethylene (TCE) and N-methylpyrrolidone (NMP).
- The US Environmental Protection Agency (EPA) is expected to set national drinking water limits for perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), and may set waste remediation and other limits for some PFAS (per- and polyfluoroalkyl substances) chemicals.
- President-Elect Biden will likely try to expedite the remaining steps to issue a maximum contaminant level (MCL) for PFOA and PFOS (which is already in process, but has been moving reasonably slowly under the Trump administration). He is also expected to designate PFAS as a hazardous substance and accelerate toxicity studies and research on PFAS.
- The Trump administration is currently attempting to complete six of the first 10 TSCA chemical evaluations before the end of 2020. The Biden administration will likely ramp up chemical risk evaluation efforts, and some are pushing the impending administration to make EPA’s risk evaluation procedures stricter, and to redo the first 10 evaluations. Others are also pushing the incoming administration to regulate some “immediate” risks while the new evaluations are being finalized.
- Given the ongoing coronavirus (COVID-19) pandemic, it is unlikely that President-Elect Biden would not continue, and potentially expand, the current trend of allowing expedited review of antimicrobial products. At the same time, there may be increased enforcement of illegal pesticide products, such as the steps EPA has already taken against select retailers and products like Bactive.
- Some US Department of Justice enforcement policies may be rolled back, including the inclusion of Supplemental Environmental Projects (SEPs) in settlements.
Partner John McGahren, deputy leader of the firm’s environmental counseling and litigation team, recently shared some of these insights with Law360.