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The Insider

The Biden administration is placing a significant focus on policies to ramp up and strengthen environmental enforcement in its first few weeks in office, including elevating environmental justice’s (EJ) enforcement role and scrapping a host of Trump-era limits on enforcement.

The actions come as a new outside analysis suggests Michael Regan, President Joe Biden’s nominee for EPA administrator, could boost the agency’s focus on enforcement given his efforts to increase inspections and penalties levied while leading North Carolina’s environment department.

Under Biden’s Jan. 27 climate change executive order, the president directs EPA and the Justice Department to elevate the focus on environmental justice in enforcement actions. In addition, some of the administration’s choices for top EPA officials have extensive experience in EJ, reflecting the agency’s plan to make EJ a central role in agency decisions on rulemaking and enforcement.

Biden Directs EPA, DOJ To Elevate Enforcement Of Environmental Justice
President Joe Biden’s recent climate change executive order (EO) includes a directive for EPA and the Department of Justice (DOJ) to significantly elevate environmental justice enforcement efforts, including making it a top priority for EPA’s enforcement office and renaming DOJ’s environment division to highlight the equity focus.

Biden’s EO signed Jan. 27 on “Tackling the Climate Crisis at Home and Abroad” says it is his administration’s policy “to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.”

Many low-income and minority communities are located near industrial sources of pollution and as a result face the greatest health risks from facilities that violate environmental laws.

Lawyers on a Feb. 4 webinar hosted by the firm King & Spalding noted that the EO includes provisions directing specific actions by EPA and DOJ that could significantly ramp up the administration’s focus on environmental justice enforcement, particularly for such fenceline communities.

The EO directs EPA’s Office of Enforcement & Compliance Assurance (OECA) to “carry forward the concept of environmental justice into EPA’s enforcement efforts,” said King & Spalding partner Brandt Leibe.

Regan, who testified at his confirmation hearing for EPA administrator Feb. 3 before the Senate Environment & Public Works Committee, could boost EPA’s attention to enforcement, based on his track record in leading the North Carolina Department of Environmental Quality, according to an analysis released by the Environmental Data & Governance Initiative.

Ewire: Regan could boost enforcement as EPA administrator
If the Senate confirms Michael Regan as EPA administrator, the agency’s focus on enforcement could increase even further, according to a new analysis of Regan’s leadership of North Carolina’s environment department that found a boost in inspections and penalties levied by the state although less of a clear-cut trend in other enforcement actions.

In another move that sheds light on the Biden administration’s position on environmental policy and enforcement, the Justice Department (DOJ) has rescinded nine Trump environmental policy memos, citing the need to give the department a full range of enforcement discretion.

Among the policies repealed is the Trump administration’s bar on the use of supplemental environmental projects (SEPs) in settlement agreements. Prior to President Donald Trump’s term, SEPs had enjoyed bipartisan support, and were used as a way to bring industry into settlements by allowing defendants to offset civil penalties while supporting community goodwill. Another Trump policy memo withdrawn is a Jan. 14 memo on enforcement discretion.

DOJ Scraps Nine Trump Environmental Policies, Including SEP Prohibition
The Biden Department of Justice (DOJ) is immediately scrapping nine controversial Trump environmental policy memos including a prohibition on the use of popular supplemental environmental projects (SEPs) in settlement agreements, arguing the memos conflict with President Joe Biden’s executive order (EO) on protecting the environment.

“Because these memoranda are inconsistent with longstanding Division policy and practice and because they may impede the full exercise of enforcement discretion in the Division’s cases, I have determined that withdrawal is appropriate,” writes Deputy Assistant Attorney General Jean Williams in a Feb. 4 memorandum to DOJ Environment and Natural Resources Division (ENRD) section chiefs and deputy section chiefs.

The Biden administration is also signaling support for citizen enforcement actions under the Clean Air Act, saying it will forgo appealing a recent settlement between the Sierra Club and a utility over alleged violations of the air act’s new source review permitting program. Environmentalists are applauding the move, saying frontline communities’ ability to pursue protections under the air law is key to advancing environmental justice.

Reversing Trump Policy, Biden Supports Citizen Clean Air Act Enforcement
Reversing a Trump-era policy, the Biden EPA and Department of Justice (DOJ) are supporting citizen groups’ ability to pursue Clean Air Act enforcement by deciding not to appeal a recent federal district court order approving an air suit settlement between Sierra Club and utility DTE that the Trump administration had opposed.

“EPA supports citizen enforcement and we appreciate Sierra Club’s cooperation with the United States throughout this litigation,” said Larry Starfield, acting assistant administrator for EPA’s Office of Enforcement and Compliance Assurance, in a Feb. 4 statement.

In another enforcement matter, environmentalists are disputing a Trump EPA plan to alter the negligence standard states must apply in their water programs when pursuing criminal enforcement. But sources doubt the Biden administration will finalize the proposal as outlined by the Trump EPA.

Critics Fault CWA Enforcement Rule But Biden Unlikely To Finalize Policy
Environmental groups are detailing legal and other problems with a Trump EPA proposal to change requirements for the type of negligence standard states must use for criminal enforcement of delegated Clean Water Act (CWA) programs, although sources say the Biden administration is unlikely to finalize the proposal as written.

In comments submitted to EPA just days before the end of the Trump administration but only recently posted to the agency’s online docket, both the Idaho Conservation League (ICL) and a separate coalition of environmental groups led by the environmentalist law firm Earthjustice say the proposal is arbitrary and capricious because it violates key provisions of the water law, among other claims.