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The Insider

President-elect Joe Biden’s transition team is sorting through sweeping recommendations for how EPA and other agencies should address climate change and environmental challenges, though observers say the new administration could face key challenges including boosting EPA’s mission.

The flurry of activity on planning for environmental policy starting in 2021 comes after Biden on Nov. 7 was declared the winner of the presidential contest, denying President Donald Trump a second term even though he has not yet conceded the race.

Amid Biden’s transition preparations, multiple groups are pitching policy proposals, including a sweeping climate-focused plan from the Climate 21 Project, which is comprised of dozens of environmental policy professionals and former Obama administration officials:

Expert Group Floats Roadmap For Biden Administration Climate Actions
A group of over 150 environmental policy experts, including former government officials, is floating detailed recommendations for the substance and timing of climate change actions the Biden administration should take at EPA and across the federal government, including immediate efforts to launch greenhouse gas regulations.

“Using its enforcement, regulatory, international, programmatic, and leadership tools, EPA can have major impact on three pillars of the climate challenge: emissions reduction, climate diplomacy, and adaptation/resilience,” the recommendations state.

The recommendations also include a suite of “cross-agency initiatives” EPA should pursue, including task forces on agriculture and industrial sector GHG emissions, and preparation of an analysis to support the planned U.S. re-entry into the Paris Agreement on climate change.

Lead authors for the EPA-related recommendations are former Council on Environmental Quality (CEQ) General Counsel Brenda Mallory, former EPA Senior Counsel Joe Goffman, and former EPA Senior Adviser Jennifer Macedonia.

The Climate 21 group floated suggestions for more than a dozen federal agencies, including several related to environmental enforcement at both EPA and the Justice Department:

Experts Urge Biden To Shift EPA Enforcement To Climate-Focused Agenda
Environmental policy experts are urging the incoming Biden administration to restructure EPA’s enforcement office to step up actions on conventional pollution violations as a way to help address climate change, while also rescinding Trump-era policies at the Justice Department (DOJ) that limit settlement tools.

For EPA’s Office of Enforcement & Compliance Assurance (OECA) specifically, the experts recommend that it conduct “enforcement of power-sector regulations with climate co-benefits.”

And the group is urging OECA to boost its role in implementing the National Environmental Policy Act, noting EPA has a “clear role” in assessing other agencies’ reviews under section 309 of the Clean Air Act.

At Justice, the group calls on Biden officials to revisit Trump-era policies that “undermined robust enforcement and effective settlement of claims that include community and climate investments.”

It urges the Biden transition team to catalog policies that constrain enforcement or harm the negotiations of settlements that can fund climate mitigation or adaptation activities, including a ban on supplemental environmental projects that have long been popular as part of industry settlements and can be “a powerful tool for providing meaningful relief” to environmental justice communities.

Observers are also expecting the incoming Biden administration to provide a boost to California’s sweeping efforts to address climate change, particularly with respect to vehicles:

Biden Administration Might Help Boost CARB’s Sweeping Climate Plans
The California Air Resources Board (CARB), the state’s air regulator, could get a significant boost from President-elect Joe Biden’s administration for its efforts to implement Gov. Gavin Newsom’s (D) sweeping climate policy agenda, legal experts say, because Biden is likely to support such efforts in contrast to the Trump administration.

Biden’s victory is likely to aid CARB in pursuing its ambitious and wide-ranging greenhouse gas-reduction strategies, said Morgan Lewis attorney David Brown.

For example, the Trump administration revoked California’s Clean Air Act federal preemption waiver allowing it to set stricter vehicle GHG limits than the federal government. Without that waiver, the state cannot implement Newsom’s order, many observers believe. But a Biden administration is likely to reverse that decision, Brown said, allowing the state to pursue tougher standards.

It is not yet known how quickly Biden could reverse the waiver revocation because the issue is in court, along with a related challenge to the Trump administration’s rollback of federal vehicle GHG rules. “They clearly can [reverse the decision] and I am confident they will, but how long it takes remains to be seen,” says Bill Magavern, policy director of California’s Coalition for Clean Air.

Other California sources agree the state is likely to play a big role in advancing a broader climate agenda while also citing some areas where it may want to hold back to better align its efforts with new federal ones.

“The operational word is how much to hold back,” says Daniel Sperling, a transportation policy expert at the University of California-Davis who is also a CARB member. “We understand our state is not an island. Climate change is a global problem, so it is crazy for one place to make a massive investment if no one else does. . . . What we want to be in California is a leader and a model” that has followers, “not the pioneer with arrows in his back.”

But Capitol Hill watchers are also suggesting that Biden might struggle to fill out his Cabinet given the chances that Republicans will retain control of the Senate, potentially complicating confirming an EPA administrator:

GOP-Led Senate May Complicate Biden’s Choice For EPA Administrator
The chances that Republicans will retain control of the Senate next year may complicate President-elect Joe Biden’s choice for EPA administrator, especially given concerns from some that the most-discussed potential nominee, California Air Resources Board (CARB) Chairwoman Mary Nichols, could face difficulties winning confirmation.

While many sources say Nichols is not a radical and has a track record of working with industry during her long career at CARB -- and at EPA before that -- others say Republicans may successfully paint her as too extreme to be confirmed to lead EPA, which is poised to execute a new climate change regulatory agenda.

Myron Ebell of the free-market Competitive Enterprise Institute argues Biden will need a “much more moderate list” of nominees to get through the Senate. “I don’t think [Rep.] Deb Haaland [D-NM] and Mary Nichols will get hearings any time soon.”

Other sources believe hesitation over Nichols may open the door for Biden to choose a different candidate for EPA chief, Heather McTeer Toney, who is national field director for Mom’s Clean Air Force and served as EPA Region 4 administrator in Atlanta during the Obama administration.

Meanwhile, former federal officials say the Biden administration might struggle to bolster EPA’s basic mission after critics charged the Trump administration of undermining key goals of protecting public health and the environment:

Biden EPA Officials Will Face Challenges In Restoring Agency’s Mission
EPA officials will face significant challenges in restoring the agency’s mission of solving environmental problems and protecting public health under President-elect Joe Biden’s administration, but lessons learned from correcting previous agency mismanagement could provide guidance, former EPA and other federal officials say.

A. James Barnes -- former chief of staff to EPA's first administrator, William Ruckelshaus, and later general counsel at the agency -- told a Nov. 11 event on the agency’s upcoming 50th anniversary that he sees “a lot of similar problems” now at EPA as he did when President Ronald Reagan asked Ruckelshaus to return as administrator in 1983 following Anne Gorsuch Burford’s resignation.

Burford’s resignation two years into Reagan’s first term came after there were serious questions about the management of the agency’s Superfund program and whether the agency had a too-close relationship with corporate executives and lobbyists.

But the magnitude of the problems now at the agency is greater “because it has gone on for four years” under Trump’s leadership, Barnes said.

Barnes is now a professor at Indiana University and spoke at a panel discussion hosted by the university’s O'Neill School of Public and Environmental Affairs on EPA’s 50th anniversary, which takes place on Dec. 2.