- Reanimated Climate Change Mitigation Efforts - “Mitigation” steps are measures to reduce greenhouse gases emissions (GHG) or other strategies to reduce climate change. Look for (a) return to Clean Air Act regulation akin to the Obama Clean Power Plan rules primarily affecting power plants instead of the more lenient Trump Affordable Clean Energy Plan or tighter regulation of methane emissions by natural gas wells and pipelines; (b) faster permitting of and affirmative investment in energy projects that do not use fossil fuels like offshore wind and utility-scale solar power, as well as projects that achieve greenhouse gas (GHG) mitigation in other ways like carbon capture and sequestration or reforestation projects; and (c) increased attention to climate change in project reviews.
- New Climate Change Adaptation Efforts - “Adaptation” is investment in projects to enable resiliency in the face of climate change. Expect additional public investment in infrastructure and significant changes to project reviews, such as environmental impact statements or Endangered Species Act consultations. Recent federal rules limited the scope of those reviews, for example precluding consideration of “cumulative impacts” of multiple planned projects or impacts outside the United States and permitting reviews that take no account of impacts on or impacts of climate change. Whether federal rules such as these will be rolled back is a question.
- Attention to Environmental Justice - “Environmental justice” is the extent to which poor or minority communities bear a disproportionate burden of pollution or environmental harms. Expect rules or guidance requiring more serious attention to whether polluting facilities are being placed within already burdened and disadvantages neighborhoods or towns. Watch for how the Biden Administration addresses the tension between encouraging new industry and job creation for precisely those same communities. For example, “brownfield” redevelopment helps the surrounding neighborhood, but is often accomplished by doing protective, but less permanent, cleanups (like a parking lot or building over contaminated soil rather than excavation and removal of the soil).
- The Role of States - Most environmental regulation happens at the state and local levels. Over the past four years, the federal government has been hostile to state regulation that is more protective than the federal, trying to constrain state reviews of pipelines and transmission lines, and cutting grants that fund state permitting programs. At the same time, it has pushed flexibility for states when they are less stringent, most recently proposing a rule to authorize state clean water permitting programs that do not criminalize ordinary negligence. Watch for all this to flip, noting that permitting roadblocks will affect necessary infrastructure projects, so there is a tension here as well.
- Trends in Financial and Other Markets - Watch for increasing corporate interest in Environmental, Social, and Governance (ESG) reporting, imposition of requirements under the Equator Principles on large bank loans, and the like. The Equator Principles provides financial institutions with a framework for ascertaining, gauging, and managing environmental and social risk in finance projects they are considering. Will the federal regulators become active? Will standard setting groups set private standards? Will large market participants impose requirements on their supply chain?
About the Authors
Greenberg Traurig’s Environmental Practice represents clients across industries with issues surrounding the environmental and natural resource laws that impact their businesses. We assist in transactions, enforcement actions, litigation, regulatory compliance, crisis management, legacy cleanups, market access, environmental policy challenges, and sustainability initiatives. Our team’s expansive geographic footprint and depth of experience provides multifaceted counsel for clients facing environmental challenges.