Vol. 51-2 Federal Casenote

Federal Casenote

Biden’s Broad Climate Plan: The Implications of Executive Order 14008

In January, President Biden issued a broad and far-reaching executive order (EO) aimed at taking a government-wide approach to reducing climate change.[1] EO 14008, titled “Executive Order on Tackling the Climate Crisis at Home and Abroad,” addresses climate change by tightening existing environmental, natural resource, and energy policies and directing federal agencies to invest in sustainable technologies.[2] The EO’s broad climate action approach also has policy implications for non-environmental and non-natural resource-related law areas, including significant implications for foreign and national security policy.[3] Among the most significant directives set out by the EO are (1) a pause on new oil and gas development leasing on federal lands; (2) federal fossil fuel subsidy elimination; (3) prioritization of federal investment in clean energy sources and technologies; and (4) an environmental justice initiative that calls for the federal government to direct 40% of climate-action-allocated funds to benefit particularly disadvantaged communities.[4] This initiative would involve investment in federal programs and initiatives such as “clean transit, workforce development, and pollution remediation.”[5]

The EO showcases Biden’s stricter approach to climate action compared to the previous administration’s de-regulatory efforts. As a result, President Biden’s EO is likely to have wide implications for fossil fuel development, land use, and energy policy. Correspondingly, the EO is anticipated to affect ongoing litigation and spark new litigation related to climate action, mitigation, oil and gas development, and environmental justice.[6]

One of the EO’s major implications is the review and potential reversal of the previous administration’s de-regulatory policies. During the new administration’s first days, the Environmental Protection Agency (EPA) requested that the Department of Justice stay or delay any ongoing litigation involving regulations enacted by the Trump Administration.[7] The Biden Administration is likely to revisit the previous administration’s relaxation of rules governing the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA), both of which are currently the subject of ongoing litigation.[8] Under NEPA, the former president moved to limit federal-permitted projects’ environmental reviews and climate impacts.[9] This move sparked litigation centering around the scope of the government’s obligation under NEPA to assess a project’s impacts on domestic and global climate change.[10] As for the CWA, Trump rescinded the Clean Water Rule, a 2015 EPA regulation defining the CWA’s federally protected waters.[11] In its place, the Trump Administration created a new rule defining “waters of the United States” (WOTUS) to narrow the CWA’s jurisdiction over federally protected waters.[12] This rule was met with opposition. While some conservative interests argued the rule was still too far-reaching and should exclude non-navigable, intermittent wetlands and streams, environmental non-governmental organizations (ENGOs) challenged the rule on grounds that it improperly broadened waste treatment exemptions.[13] Similarly, several indigenous tribes challenged the rule on the basis that it impermissibly threatens critical waterways.[14] Numerous states requested a freeze of the new WOTUS rule, reasoning that the EPA and the U.S. Army Corps of Engineers issued the rule in violation of the CWA.[15] However, outcomes varied across states. While the U.S. District Court for the Northern District of California denied injunctive relief for lack of injury, a U.S. District Court for the District of Colorado judge granted a freeze of the new rule for the state.[16] However, as of March 2, 2021, the U.S. Court of Appeals for the 10th Circuit vacated the Colorado district court’s stay of the rule, holding that the court overreached in granting the injunction as Colorado did not show the requisite injury to confer standing.[17]

The Biden Administration is anticipated to reverse rules related to fuel economy and GHG emission standards and federal-land oil-and-gas leasing.[18] In 2019, the Trump Administration replaced the Obama-era Clean Power Plan with the Affordable Clean Energy (ACE) Rule.[19] While the new ACE rule was vacated by the D.C. Circuit court on January 19, 2021, this ruling is likely to spur new litigation as the Biden EPA takes measures to revise and potentially expand the CAA’s Section 111(d)’s scope.[20] The Dakota Access Pipeline (DAPL) is also a current litigation subject, and President Biden may use his discretion to either shut down the pipeline temporarily, to compel further environmental review, or call for the pipeline’s removal.[21] In February, the administration’s interior secretary nominee acknowledged job losses as a potential shutdown consequence, but the Biden Administration’s stance on the DAPL remains unclear.[22]

As the Biden Administration takes steps to tighten these areas’ regulations, future litigation is projected to follow. Lawsuits filed by regulated entities and oil and gas stakeholders opposed to increased regulation and compliance costs are likely to occur. Additionally, ENGOs, other NGOs, or private citizens may pursue litigation to challenge the new regulations’ or initiatives’ inadequacies.[23] Presently, some oil and gas industry stakeholders have already filed suit in response to the EO’s lease moratorium.[24] Shortly after its passage, The Western Energy Alliance, consisting of oil and gas companies, filed suit to challenge the Order on the grounds that the president went beyond his authority.[25] The group also threatened to bring suit under the Mineral Leasing Act and the Federal Land Policy Management Act.[26] Other oil and gas industry regulated entities and stakeholders are likely to challenge the Biden Administration’s actions on similar grounds. In March, the Petroleum Association of Wyoming joined The Western Energy Alliance’s bid to block Biden’s leasing moratorium, arguing that it threatened Wyoming’s oil and gas development.[27]

Several lawmakers have also expressed their concern with the EO, with Texas Governor Greg Abbott threatening future litigation opposing Biden’s pause on oil and gas leasing in federal lands. Governor Abbott issued his own EO in response, citing regulatory overreach.[28] The executive order mandates that state agencies “‘use all lawful powers and tools’ to oppose federal actions they believe threaten the state’s energy industry—including ‘identify[ing] potential litigation.’”[29] Although Abbott conceded that, as Texas oil and gas leasing occurs chiefly on state-managed lands, Texas would be generally unaffected by the moratorium.[30] However, the governor asserted his belief that the Biden Administration is likely to impact the Texas energy industry and threatened to fire state officials who do not comply with his mandate.[31] Similarly, Utah Governor Spencer Cox stated his concern about the moratorium: “Two-thirds of our lands are public lands managed by the federal government . . . [the] order curtails future investment in Utah, weakens rural Utah’s economy and keeps many Utahns from being able to provide for their families.”[32] Utah lawmakers, including Senators Mitt Romney and Mike Lee, subsequently introduced the Protecting our Wealth of Energy Resources (POWER) Act.[33] The POWER Act bars the president and his appointees from blocking leasing or permitting in federal lands without Congress’s authorization.[34]

Several ENGOs are also pursuing litigation, challenging Biden’s mitigation plans’ inadequacies. Recently, nonprofit organizations, including The Center for Biological Diversity, Sierra Club, and Natural Resources Defense Council, filed a formal notice to the Biden administration challenging nationwide permits (NWPs) issued during the Trump Administration’s final days.[35] The NWPs threaten to “allow hundreds of thousands of discharges of dredged or fill material into the nation’s waters and wetlands from oil and gas development, pipeline and transmission-line construction, and coal mining” in violation of the Endangered Species Act.[36] Previously, the U.S. Fish and Wildlife Service and National Marine Fisheries Service determined that such permitting could also have an impact on several animal species, such as migratory birds, whooping cranes, and Florida manatees.[37] While environmental groups acknowledged the Biden administration’s plans to review NWPs issued by the previous administration in accordance with EO 13990 “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” they expressed intent to file suit if the U.S. Army Corps of Engineers fails to fulfill its duty to consult in granting NWPs.[38] Similar litigation from other public interest organizations is likely to follow.

Although EO 14008’s impacts remain to be seen, the quick influx of litigation pursued by energy companies, stakeholders, and nonprofit organizations and public interest groups suggests that the Biden Administration’s sweeping climate action plan is likely to be the subject of continuing litigation. As the Biden Administration seeks to advance its plan and execute the EO initiatives, by reversing or revising the previous administration’s de-regulatory approach and by launching new regulatory programs and initiatives, Biden’s climate action plan is likely to face challenges in the courts from multiple angles.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Jessica A. Villalon is a third-year student at The University of Texas School of Law and Senior Editor of the Texas Environmental Law Journal.