What Can Biden Do On Day 1? Litigate and Enforce Environmental Laws

The incoming Biden Administration’s Department of Justice and Environmental Protection Agency can immediately reverse current policies directing lax enforcement of the nation’s pollution laws, which undoubtedly have resulted in decreased compliance by facilities across the country.  A recent study showed that the Trump Administration had brought significantly fewer enforcement actions than in the prior eight years. The Biden team could immediately ramp up monitoring, inspections, and enforcement on Day 1.  They could also revive environmental settlements that allowed parties settling enforcement cases to “repay” the public through implementing environmental projects on the ground that undo or make up for direct damage and use it in climate cases.  Justice Department lawyers could also reverse the government’s opposition to key climate litigation being brought by cities and states against oil companies.

Why This Matters:  The likelihood of a divided government has led many legal and climate experts to worry that a Biden administration will be hamstrung on climate change.  New laws are unlikely and regulation changes take time and could ultimately get hung up in courts that are now more conservative than ever. But even just the threat of enforcement — which has not been present in several years — could be enough to improve the situation on air and water pollution in many industrial areas.

Supreme Court Intrigue 

The largest oil companies filed a brief yesterday with the Supreme Court asking the Justices to force climate litigation into federal courts as opposed to state ones. In this case, the City of Baltimore is suing the oil giants on climate change grounds for damages to cities caused by climate change, but many cities have filed similar cases in state courts around the country.  The oil companies argue that these cases belong in federal court because they involve “interstate” pollution and “address “federal interest in setting domestic and foreign policy on matters involving energy, the environment, and the economy,” Axios reports.  Interestingly, the Supreme Court will not hear the substantive climate claims — the court agreed to take the case but is only looking at the procedural question about which court should hear the cases.  In a Biden administration, legal experts believe that the Justice Department, which has filed briefs in support of the oil companies, could reverse course and support the cities on this procedural question.

Supplemental Environmental Projects

Last March, the Trump administration nixed a popular tool in environmental enforcement cases known as “supplemental environmental projects” or “SEPs” arguing that these “in-kind” payback projects “unlawfully divert” penalty money that would otherwise flow to the U.S. Treasury.  SEPs have been used for decades — in Republican and Democratic administrations — allowing companies accused of pollution violations to voluntarily conduct environmentally beneficial projects in affected communities—sometimes in exchange for lower fines.  Many environmental lawyers would like to see them come back.  John Cruden — one of the nation’s most prominent environmental lawyers (and Friend of the Planet) who led the environment division under President Barack Obama, called on the Biden administration to quickly rescind the Trump administration policy eliminating SEPs.

Up Next

Australia Finally Releases Pathway to Net Zero By 2050, Leaving Many Wanting More

Australia Finally Releases Pathway to Net Zero By 2050, Leaving Many Wanting More

By Amy Lupica, ODP Daily Editor With less than one week left until COP26, Australian Prime Minister Scott Morrison has moved his government to the left on climate change, committing for the first time to a net zero target by 2050, but questions remain about the details and many remain frustrated by Morrison’s refusal to […]

Continue Reading 518 words
Atmospheric Carbon Levels Reach 3 Million Year Highs Ahead of COP26

Atmospheric Carbon Levels Reach 3 Million Year Highs Ahead of COP26

By Amy Lupica, ODP Daily Editor Atmospheric carbon dioxide levels have hit a three-million-year high, according to a World Meteorological Organization (WMO) report published yesterday. Despite a brief dip in emissions in 2020 due to the COVID-19 pandemic, the overall trend of increasing emissions continues, indicating last year’s dip had little to no impact on […]

Continue Reading 313 words
Global Leaders and Scientists on the Economic Cost of Biodiversity Loss

Global Leaders and Scientists on the Economic Cost of Biodiversity Loss

By Natasha Lasky, ODP Staff Writer A report in the Dasgupta Review shows that by using a fiscal lens to view Earth’s growing biodiversity loss, we can see how it links to economic development. By viewing nature as an asset like “produced capital (roads, buildings and factories)” or “human capital (health, knowledge and skills)” — […]

Continue Reading 376 words

Want the planet in your inbox?

Subscribe to the email that top lawmakers, renowned scientists, and thousands of concerned citizens turn to each morning for the latest environmental news and analysis.