It’s going to get a lot tougher to get new construction projects off the drawing boards and permitted following a series of actions in February by the Biden administration Environmental Protection Agency (EPA) and the Department of Justice (DOJ).

Like much of the new administration’s early activities, the agency’s actions return to previous Democratic governments, including the Clinton and Obama presidencies, from the stream of Biden executive orders.

First, and most likely to slow or stop new projects, is the return of “environmental justice” as a significant consideration in implementing energy and environmental policy. It harkens back to the Clinton era when the term gave birth to community organizations who lobbied against projects under the theory that their neighborhood would be adversely affected by construction and new projects’ operation.

These efforts slowed most projects while the environmental justice groups negotiated “mitigation,” including neighborhood residents’ employment and payouts to the environmental groups. The California Air Resources Board (CARB) is beating the environmental justice drum. The effort is strengthened by AB 617, passed in 2016. It set targets for reductions in nonvehicular air quality improvements—factories, refineries, etc.—and allows CARB to use funds from its Cap and Trade auctions to finance these efforts.

The Biden administration’s plan to expand the concept to include “climate justice” and “health equity” is surrounded by an air of mystery. They weren’t hot topics through the elections, and little things like organization and funding aren’t spelled out. Similar to actions taken on climate change, President Biden announced plans for elevating the concept by designating new Cabinet-level offices and intensifying enforcement.

A lot less mysterious is the string of actions from the DOJ reversing the Trump Administration’s efforts to reign in federal prosecutions of environmental “crimes.”

In early February, the Justice Department withdrew nine Trump-era policy and guidance documents that shaped how the Environment and Natural Resources Division (ENRD) enforced environmental law during the past four years, including: 

  • Restricted the department’s use of settlement tools
  • Cautioned against aggressive use of judicial and criminal enforcement to address environmental violations.
  • Removed the prohibition on supplemental environmental projects
  • Stopped “community service payments” to third parties in negotiated settlements or plea agreements.
  • Set a higher standard for seeking judicial enforcement against polluters, limiting such actions to cases that involve “intentional, knowing, or willful wrongdoing.” 
  • Prevented pursuing civil penalties in cases where states had already taken action.
  • Kept the feds out of state civil enforcement matters under the Clean Water Act. 

By Dave Sorem, P.E. ECA Government Affairs Chairman email: [email protected]