Potential Biden Administration Changes

Abstract

Climate change was the top environmental focus during Biden's 2020 presidential campaign, so it is reasonable to assume that is where his administration's environmental efforts will be focused initially. In fact, at the time of this writing, the lead candidates for heading up the US Environmental Protection Agency (USEPA) all work in positions that champion ambitious climate policies. However, with coal-state senators Shelley Moore Capito (R-WV) and John Barrasso (R-WY) chairing the Committee on Environment and Public Works and the Committee on Natural Resources, respectively, the Biden administration's clean energy efforts will move more slowly and rely more on regulatory options than if he had his own party controlling both bodies of Congress. For example, he will have more regulatory options than legislative options available to address greenhouse gases and vehicle efficiency standards. And while presidents do have the power of executive orders at their disposal, they have limited authority and—as we've seen the past few years—can get easily hung up in court unless very carefully crafted. Specific to water, if the Senate remains in Republican control after January's Georgia runoff elections, it is not likely we will see a major rewrite of the Safe Drinking Water Act to make it easier for USEPA to write new regulations. Either way, don't be surprised if some Republicans support efforts to streamline rule-writing to a degree. There are plenty of Republicans with contamination from per- and polyfluoroalkyl substances (PFAS) or lead service line issues in their states or districts, and those issues have their attention. It is likely we will see drinking water regulations issued for a handful of chemicals within the PFAS family, but probably not for the whole class of PFAS compounds. Biden is a centrist by nature, and because PFAS are used in everything from medical devices to semiconductor chips to cables, it is likely his administration will take these uses into account. The administration could require Clean Water Act permits to list PFAS releases and volumes, halt approvals of the use of new PFAS compounds, and close loopholes in existing reporting requirements. Environmental justice has been an ongoing cause for incoming vice president Senator Kamala Harris (D-CA), so expect that to get a higher profile in this administration. Enforcement of environmental regulations will also get a renewed emphasis. As for the ongoing saga of the Waters of the United States rule, the Trump administration issued a narrower definition of regulated wetlands than its predecessor, but that is hung up in court. If the Biden administration moves to change that newest definition, expect more action in the courts. This could go on for a while until the issue reaches the Supreme Court again; the court's decision in 2006, Rapanos vs. United States, opened the door to more litigation on the matter. The Trump administration also attempted to streamline the environmental permitting process by issuing new regulations under the National Environmental Policy Act. That has attracted five lawsuits so far. Since there is not time for these new regulations to take effect, the Biden administration will have the opportunity to reconsider these actions. Infrastructure spending is often seen as a tool to boost economic growth and get people employed again. A big uncertainty is the length and depth of the current economic downturn that the country is experiencing because of coronavirus impacts. If Congress feels a need to step in again this spring, infrastructure spending could be wielded as it was in the American Recovery and Reinvestment Act (ARRA) of 2009. If this is the case, then the question will be whether to put more federal money into existing tools, such as the Water Infrastructure Finance and Innovation Act program and the state revolving loan fund programs, or to also create new financial tools like ARRA did with Build America Bonds. The most likely course is for Congress and the administration to focus on those existing finance tools and possibly existing grant programs, such as those for lead service line removal and PFAS remediation. The past decade has not been kind to forecasters of political trends, so be prepared for developments beyond those described here. Tommy Holmes is director of legislative affairs at the AWWA Government Affairs Office in Washington, D.C. He can be reached at tholmes@awwa.org.