By Meghan Smith and Alex Prochaska

Law360 (October 30, 2020, 3:41 PM EDT) --

Meghan Smith

Alex Prochaska

During his term in office, President Donald Trump has issued several executive orders to implement his vision of rolling back environmental regulations and streamlining infrastructure projects.

Democratic presidential nominee Joe Biden has released "The Biden Plan for a Clean Energy Revolution and Environmental Justice," which provides that "on day one, Biden will sign a series of new executive orders with unprecedented reach that go well beyond the Obama-Biden administration platform."

Although the Biden plan does not go as far as the measures outlined in the Green New Deal, the Biden plan will likely require the rescission or amendment of some executive orders issued by Trump.

There are 12 executive orders that impact environmental regulations and policy that may be amended or revoked under a Biden administration.

Executive Order	Title	Publication Date	Citation	Summary
13927	Accelerating the Nation's Economic Recovery From the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities	6/9/2020	85 FR 35165	Provides for accelerating permitting processes under National Environmental Protection Act, Endangered Species Act, and the Clean Water Act for infrastructure projects.
13924	Regulatory Relief to Support Economic Recovery	5/19/2020	85 FR 31353	Provides for agencies to temporarily or permanently rescind, modify, waive, or provide exemptions from regulations that may inhibit economic recovery.
13892	Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication	10/15/2019	84 FR 55239	Requires agencies to provide public notice of any legal standard that may be applied against parties and also provides that guidance documents cannot be used to impose new standards on parties unless authorized by law.
13891	Promoting the Rule of Law Through Improved Agency Guidance Documents	10/15/2019	84 FR 55235	Provides that guidance documents that have not gone through notice and comment procedures are to be treated as nonbinding in law and in practice.
13868	Promoting Energy Infrastructure and Economic Growth	4/15/2019	84 FR 15495	Provides for Clean Water Act Section 401 Water Quality Certification regulations to be revised.
13867	Issuance of Permits With Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States	4/15/2019	84 FR 15491	Provides that the president shall have sole authority to issue, deny, or amend permits for infrastructure projects at international borders.
13807	Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects	8/24/2017	84 FR 40463	Directs agencies to complete all federal environmental reviews and authorization decisions for major infrastructure projects within two years.
13783	Promoting Energy Independence and Economic Growth	3/31/2017	82 FR 16093	Directs agencies to review regulations that burden domestic energy development and to suspend, rescind, or revise those that are unduly burdensome.
13778	Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule	3/3/2017	82 FR 12497	Directs the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) to consider rescinding the Waters of the United States Rule and conduct rule-making using Justice Scalia's test in Rapanos v. United States, 547 U.S. 715 (2006).
13777	Enforcing the Regulatory Reform Agenda	3/1/2017	82 FR 12285	Requires agency heads to identify regulations that eliminate jobs, are outdated, impose costs that exceed benefits, or are inconsistent with regulatory reform initiatives.
13771	Reducing Regulation and Controlling Regulatory Costs	2/3/2017	82 FR 9339	Provides that for every new regulation issued, at least two prior regulations be identified for elimination and provides for a net zero increase in regulations.
13766	Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects	1/30/2017	82 FR 8657	Provides for deadlines for completing environmental reviews of high-priority infrastructure projects.

A Trump reelection will likely see further deregulation action. EPA Administrator Andrew Wheeler indicated the same in a Heritage Foundation virtual event on July 29.

Let's take a closer look at a few executive orders that may have the highest impact if they are revoked or amended by a Biden administration.

Environmental Permitting Reform

Both E.O. 13766 ("Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects"), signed on Jan. 24, 2017, and E.O. 13807 ("Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects"), signed on Aug. 15, 2017, focused on how to streamline the permitting process for infrastructure projects, especially in terms of the environmental review process.

E.O. 13766 recognized the need to "upgrad[e] critical port facilities, airports, pipelines, bridges, and highways" and set up a process to have such projects designated as "high priority" by the Council on Environmental Quality, or CEQ.[1] Such a designation allows deadlines for permit milestones to be set by the CEQ for those projects. Several months later, E.O. 13807 extended the goal to streamline the environmental review process to all infrastructure projects.

E.O. 13807's goal, according to Secretary of the Interior Order 3355, is to conduct environmental review in a manner that "1) focus[es] on issues that truly matter rather than amassing unnecessary detail; 2) reduce[s] paperwork, including by setting appropriate page limits; 3) discuss[es] briefly issues that are not significant; and 4) prepare[s] analytic (rather than encyclopedic) documents, among other measures." It also directs executive agencies to complete all environmental reviews for major infrastructure projects within two years.

In the three years since the issuance of these executive orders, the CEQ has conducted studies that found the average length of an environmental impact statement was over 600 pages and the average time for agencies to complete an environmental impact statement was 4.5 years. The Office of Management and Budget and the CEQ have also issued several guidance documents and memoranda of understanding that have been in place since 2018 to further the goals of the executive orders.

One guidance document establishes the One Federal Decision Framework. In addition, several executive agencies have proposed rules to achieve the goals expressed in E.O. 13766 and E.O. 13807, with the CEQ's final rule published on July 15, 2020, and taking effect on Sept. 14. The final rule incorporated the page limitations and time limitations for National Environmental Policy Act review, but it also backed off the more aggressive restriction of climate change review.

We should not automatically expect that a Biden administration or Democratic Congress will find the executive orders, the guidance issued under the executive orders, or the rules promulgated in furtherance of the executive orders entirely objectionable. For example, there was and is a clear need to shorten the time it takes to complete an environmental impact statement. The following possible actions may affect these executive orders and rules/guidance issued pursuant to them:

• A Biden administration could revoke the executive orders entirely or could do the following:

• Modify the executive orders to keep the streamlining goals but eliminate the limits of certain technical reviews.

• Modify the executive orders to tighten the definition of "infrastructure projects" to exclude energy/fossil fuel projects.

• The CEQ final rule falls within the carryover period of the Congressional Review Act,[2] meaning that the next Congress will have an opportunity to nullify the rule (if there is a change in control of both chambers and a change in the presidency).

• Pending litigation over elements of the CEQ final National Environmental Policy Act rule may affect the rule's implementation in the event of a Trump second term and/or Senate control remaining in Republican hands.[3]

Domestic Energy Development

E.O. 13783, titled "Promoting Energy Independence and Economic Growth" and published on March 31, 2017, directed federal agencies to review and, if necessary, suspend, revise, or rescind regulations and agency actions that unduly burden domestic energy production, particularly with respect to domestic oil, natural gas, coal, and nuclear energy.

The E.O. defined "burden" to mean "unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources." The E.O. further directed that federal agencies submit a report detailing recommendations that could alleviate such burdens and, finally, to propose rules implementing those recommendations.

A major direct action of the E.O. included the rescission of several Obama administration climate and energy executive orders, presidential memoranda, and reports, many of which could have been used to support the Biden Plan. The E.O. also directed the CEQ to rescind its "Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Reviews," which it did on April 5, 2017. Ultimately, the CEQ's published its replacement guidance on June 26, 2019.

This E.O. also led to the repeal and replacement of the Clean Power Plan with the Affordable Clean Energy rule, which is now pending in the U.S. Court of Appeals for the D.C. Circuit.[4] This E.O. also supported the Review Rule, published Sept. 14, 2020, and the Reconsideration Rule, published Sept. 15, which rescinded the 2012 and 2016 New Source Performance Standards that regulated volatile organic compound and methane emissions for oil and gas facilities. The Review Rule and Reconsideration Rule are currently stayed by the D.C. Circuit.[5]

A Biden administration will likely quickly rescind, revise or amend E.O. 13783 to support the Biden plan.

Many open questions remain, including:

• Would a Biden administration outright rescind E.O. 13783, or strategically amend or rescind the sections that would be impediments to the Biden plan or other Biden administration goals, thereby potentially reviving memoranda, guidance, executive orders and reports?

• If such guidance is revived, will a Biden administration also rescind E.O. 13891 regarding the nonbinding nature of guidance documents not subject to public notice and comment?

• How will a Biden administration address the ongoing litigation of the Review Rule and the Reconsideration Rule? Would a Biden administration request a stay of this litigation while they figure out whether to revise or rescind each rule, and how would such action affect the litigation surrounding the 2016 New Source Performance Standards currently stayed in the D.C. Circuit?

• Finally, how would a Biden administration address the challenges to the CEQ NEPA rule, the Navigable Waters Protection Rule, the Affordable Clean Energy Rule, and other pending litigation regarding Trump administration actions? A Biden administration could decide not to continue defending them and ask the courts to delay or stay the proceedings while they reconsider, modify, or withdraw the regulations.

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Meghan Smith is a partner and Alex Prochaska is special counsel at Jones Walker LLP.
 
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Both red and blue states submitted requests to have certain infrastructure projects designated as "high priority," including California (10 mostly transportation-focused projects and repairs to a dam spillway), Louisiana (five coastal remediation, shipping, and land-building projects), Texas, Florida, Nebraska, Utah, Alaska, Idaho, and the US Virgin Islands.

[2] 5 U.S.C. § 801, et seq., was passed in 1996 and empowers Congress to review new federal regulations issued by government agencies within 60 legislative days (as opposed to calendar days). Congress can overrule a regulation by passing a joint resolution by a simple majority vote within the review window.

[3] Alaska Community Action on Toxics et al. v. CEQ, No. 3:20-cv-5199 (N.D. Cal. July 29, 2020); Wild Virginia et al. v. CEQ, No. 3:20-cv-0045 (W.D. Va. July 29, 2020).

[4] Am. Lung Ass'n v. EPA , Nos. 17-1172, 17-1185, 17-1187, (D.C. Cir. Jan. 2, 2019).

[5] Environmental Defense Fund, et al. v. Andrew Wheeler, 1:20-cv-1359 (D.C. Cir Sept. 17, 2020).​​​

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