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The Insider

Swing states are still counting votes in the presidential election and competitive Senate races, but the 2020 election appears all but guaranteed to produce significant changes for EPA’s policy agenda for its 50th year, particularly on climate change and energy.

While the final outcome of the Nov. 3 race between President Donald Trump and former Vice President Joe Biden is still in doubt, with the decisive states of Michigan, Nevada and Pennsylvania all continuing to count absentee ballots, Democrats appear to have held the House but face long odds to achieve their goal of taking control of the Senate -- meaning whoever wins the White House will face a divided Congress until at least 2022.

That sets the stage for major changes to federal environmental policy at the executive level regardless of how the final votes fall, with Biden and Trump each poised to rewrite EPA’s approaches to climate change, conventional pollution, and more:

Despite Election Uncertainty, Environmental Policy Poised For Upheaval
Despite uncertainty about the final result of the Nov. 3 presidential election, environmental policy is poised for a major upheaval whether President Donald Trump wins re-election and pursues an aggressive deregulatory agenda in his second term or Democratic nominee Joe Biden wins and implements his sweeping climate change plan.

Whoever Biden would nominate to head EPA is expected to oversee an ambitious policy agenda likely to include undoing some Trump administration rollbacks of Obama-era regulations. That could include ending EPA’s defense of deregulatory actions that currently face legal challenges in federal district and appellate courts.

The agency would also be likely to place a major emphasis on environmental justice in its decisions during a Biden administration, as Biden and his running mate Sen. Kamala Harris (D-CA) have long championed the issue.

A Biden EPA might ramp up enforcement of environmental statutes, following claims by some Democrats and environmentalists that enforcement slumped under the Trump administration. One former EPA enforcement official expects that the agency’s Office of Enforcement & Compliance Assurance under a Biden administration would show “an interest in launching new initiatives that get attention.”

A Trump victory would allow EPA to continue its legal defense in federal courts against challenges to major climate and other environmental rollbacks issued during the president’s first term. It would be an “opportunity [for the Trump administration] to consolidate and finalize” deregulatory rules and interpretations now pending at EPA or in the courts, said University of Michigan environment and public policy professor Barry Rabe during an Oct. 15 Brookings Institution webinar.

EPA’s attempt to defend such rollbacks could get a boost from the Senate’s recent confirmation of Supreme Court Justice Amy Coney Barrett. Her appointment cements a 6-3 conservative majority on the high court that could rule in the Trump administration’s favor in a second term if suits over agency rollbacks reach the justices.

And if EPA lost some of those cases -- either at the high court or at the federal district or appellate level -- the new four-year term would give the administration enough time to revise the deregulatory plans to remove any hurdles that judges outline in a ruling vacating a rollback or remanding it to the agency.

Even before vote-counting began, industry was bracing for the potential shift from a Biden victory, with attorneys focusing on his picks for Cabinet posts as key indicators of what his priorities would be:

Industry Attorneys Prepare For Major Environment Shift From Biden Win
Amid speculation that the Nov. 3 elections could allow Democrats to re-take control of the White House and potentially the Senate, industry attorneys are preparing their clients for expected dramatic changes in federal environmental and climate change rules.

Nobody knows exactly who Biden would appoint but, “I do think that the Biden administration is going to want to create a Cabinet that looks like America,” including that it be half female. That will “affect choices up and down the line,” one industry source says.

This source specifically referenced long-time California Air Resources Board Chairwoman Mary Nichols as a likely choice for EPA administrator, reinforcing a recent press report that “the EPA job is Nichols’s if she wants it.”

Regarding how Biden would approach climate, energy and environmental issues, the source adds, “The notion he’s been captured by the far left . . . is not accurate. . . . He doesn’t need to rely on [Rep. Alexandria Ocasio-Cortez (D-NY)] to tell him which end is up. He has a lot of his own ideas and lots of experience in the climate change area.”

A second industry source points out that another big difference between the two administrations is that Biden “will come in organized and ready to hit the ground running, unlike the Trump administration, which took a year to get organized” and did not accomplish much for about 18 months. With Biden, “I would expect people who know EPA and the issues” to join the agency, which could make “a huge difference.”

Meanwhile, Senate Republicans are preparing for environment committee chairman Sen. John Barrasso (R-WY) to cede leadership of the panel to Sen. Shelley Moore Capito (R-WV) in the next Congress, opening the door to changes in how the lawmakers oversee EPA and address environmental legislation:

Likely GOP Senate Environment Panel Shuffle Spurs Policy Questions
Expectations that Sen. Shelley Moore Capito (R-WV) will take over as the top Republican next year on the Senate Environment and Public Works (EPW) Committee that oversees EPA is prompting questions about how such a committee shuffle could affect environment policy.

Capito, who is currently chairwoman of EPW’s air subcommittee, is expected to take over as the top Republican on EPW, sources say, after Barrasso takes over the Energy & Natural Resources (ENR) Committee. That panel has jurisdiction over an array of energy and public lands issues particularly relevant to his home state.

Sen. Lisa Murkowski (R-AK), who is currently chairwoman of ENR, is limited under GOP rules from remaining on the top slot in the committee in the next Congress.

Regardless of which party controls the Senate in 2021, the expected EPW shuffle would mean that coal state senators dominate the top slots on both EPW and ENR, which oversee much of the environment and energy policy in the Senate.

Observers appear split on whether the change could hamper, or even boost, bipartisanship on the EPW, which for years has been starkly divided on environment-related issues even as senators work more collaboratively on issues such as transportation infrastructure.

“It will take time” for Capito and Carper to figure out their working relationship, says one observer, adding that the shift raises questions about whether apparent EPW agreements on some pending legislation would be reopened if proposals do not move this year.

It is also possible, however, that Capito could prove more amendable to working with Democrats than Barrasso, the current Republican conference chairman, says a former Hill staffer. This source says Capito has sometimes shown more of a willingness to engage and “geek out” on the details of environmental policies.