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This article is part of our&nbsp;The Way We See It – The 2024 Election in Perspective&nbsp;series. Leading up to the November presidential and congressional elections, we will offer our thoughts and insights – not only on the political developments but also how the politics will shape the policy development in Congress. To get this bi-weekly communication directly to your inbox, subscribe to our Federal Policy updates&nbsp;<a href="https://e.bakerlaw.com/s/734eec79eb992ef4a0b212f8eef4ef62bd15c658" target="_blank" rel="noreferrer noopener">here</a>.

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As with most issues, the potential Harris and Trump administrations have sharply divergent views on the role and priorities of the federal government in relation to the implementation and enforcement of environmental laws. In this instance, we have the benefit of experience from prior administrations to help inform what we can expect to see from the next president. While it is impossible to touch on the multitude of issues that the U.S. Environmental Protection Agency (USEPA) and state and local environmental agencies face, several environmental challenges will dominate headlines during the next four years, and here we attempt to contrast the candidates on these issues.

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Climate Change and Greenhouse Gas (GHG) Emissions

Climate change is perceived by many as the environmental issue of our time, but there is a sharp contrast between the candidates regarding the appropriate approach and timing.

A Harris administration will continue to expand the Biden administration’s push to address climate change both domestically and abroad. Vice President Kamala Harris has called climate change “<a href="https://www.cnn.com/politics/live-news/kamala-harris-town-hall-iowa/index.html?utm_medium=social&amp;utm_source=twCNN&amp;utm_content=2019-01-29T02%3A59%3A04&amp;utm_term=image" target="_blank" rel="noreferrer noopener">an existential threat</a>.” Harris co-sponsored the Green New Deal as a senator and endorsed it as a presidential candidate in 2019 before unveiling a $10 trillion plan to reduce GHG emissions by, in part, transitioning the United States to a zero-emissions economy by 2045. As vice president, she cast the tie-breaking vote in the Senate for the Inflation Reduction Act, which provided approximately $370 billion to reduce GHG emissions. The Biden administration has prioritized rulemaking efforts by USEPA to reduce GHG emissions from the power and oil and gas sectors and has made the “social cost of carbon” a fundamental criterion in government decision-making. It is reasonable to expect a Harris administration to continue and expand on the prior administration’s efforts across industries.

A Trump administration will take a completely different approach to combating climate change as Former President Donald Trump has made clear that he has reservations about the veracity of proponents of climate change, including both their predictions and proposals. He certainly does not view it as an “existential threat.” In sharp contrast to the Biden administration, the previous Trump administration viewed climate change as an economic and trade issue, expecting to achieve similar if not better results through a combination of onshoring of manufacturing (i.e., away from countries that allow higher pollution), tariffs, economic progress, and market forces.&nbsp;There is little doubt that a Trump administration will seek to expand domestic production of oil and gas and other minerals such as coal by issuing leases, unlocking new federal lands to development and reducing regulatory impediments to fossil fuels. Rulemaking efforts by the Biden administration seeking to reduce or eliminate GHG emissions from the power plant and oil and gas sectors will almost certainly be canceled, delayed, remanded, or otherwise revised to focus on efficiency improvements as opposed to capital expenditures for GHG control technologies, and will likely remain limited to the power plant sector.

Environmental Justice

Environmental justice will be a major pillar of the Harris administration. President Biden’s Executive Order 14096 (April 21, 2023) adopts a whole-of-government approach to advance environmental justice considerations. And environmental justice has been a priority of the Biden administration since Inauguration Day. While environmental justice and related programs have been reflected in USEPA policy and considerations for decades, in October 2021, USEPA announced that it would for the first time use “affirmative authority” to withhold federal funds from states and other recipients that did not comply with the Biden administration’s interpretation of Title VI of the Civil Rights Act, which could include instances of either (1) intentional discrimination against minorities or (2) disparate impacts on minorities. USEPA attempted to use this affirmative authority against the state of Louisiana in 2022, informing the Louisiana Department of Environmental Quality (LDEQ) that it had found “<a href="https://www.epa.gov/system/files/documents/2022-10/2022%2010%2012%20Final%20Letter%20LDEQ%20LDH%2001R-22-R6%2C%2002R-22-R6%2C%2004R-22-R6.pdf" target="_blank" rel="noreferrer noopener">significant evidence suggesting that [LDEQ’s] actions or inactions have resulted and continue to result in disparate adverse impacts on Black residents</a>.” The state of Louisiana sued, and a federal district court judge in Louisiana, on August 22, 2024, issued a permanent injunction prohibiting USEPA and the U.S. Department of Justice (USDOJ) from imposing or enforcing disparate-impact-based requirements under Title VI of the Civil Rights Act against Louisiana and its agencies. This litigation is ongoing, as the state of Louisiana has requested the court to vacate the portion of USEPA Title VI regulations that allow for consideration of disparate impacts. Notwithstanding this decision and related, ongoing litigation, it is reasonable to expect that a Harris administration will continue to push environmental justice considerations, including through rulemaking, permit reviews, grant decisions and enforcement settlements.

In contrast to Harris, a Trump administration will limit Title VI enforcement to intentional discrimination (and prohibit USEPA from considering disparate impacts in the environmental context). In fact, prior to the end of the first Trump administration, the USDOJ Civil Rights Division sought to amend the USDOJ’s Title VI regulations, noting that the regulations apply only to “disparate intent” and not “disparate impact.”

Per- and Polyfluoroalkyl Substances (PFAS)

One of the few environmental policies on which there may be some agreement across the political spectrum is the need to address per- and polyfluoroalkyl substances (PFAS). Even within the sharply divided 118th Congress, nearly 50 bills (most of which are co-sponsored by members of both parties) have been filed to address various aspects of PFAS. PFAS include thousands of compounds used to make consumer and industrial products with water-, stain- and heat-resistant properties.

We would expect a Harris administration to continue the whole-of-agency approach to PFAS that the Biden administration rolled out in its October 2021 PFAS Strategic Roadmap, completing those tasks and carrying out the many PFAS rules and proposals put into effect this year – including implementing the Section 8(a)(7) TSCA Reporting Rule, drafting a rulemaking to include PFAS in National Pollutant Discharge Elimination System permits, continuing to expand the number of PFAS in Toxics Release Inventory Program reporting, enforcing drinking water limits such as those recently finalized under the Safe Drinking Water Act, and proposing further rulemakings for PFAS under Superfund and hazardous waste laws. Beyond USEPA, other agencies including the Department of Defense (USDOD), Department of Health, Department of Agriculture, Food and Drug Administration, and Department of Transportation will likely have an increased focus on addressing the potential impacts of PFAS contamination in the environment and in the supply chain including food, consumer products and medical devices.

Given the bipartisan interest, we expect a Trump administration to also be receptive to some PFAS remediation efforts – including at USDOD sites and military installations. A Trump administration also may support state-led efforts to address PFAS-contaminated sites. Previously, the Trump administration worked on Safe Drinking Water Act regulations addressing PFAS, provided guidance on the destruction and disposal of PFAS, and addressed groundwater cleanup efforts at military bases. We also believe that the Trump administration will continue ongoing PFAS regulatory efforts to facilitate what it believes to be a “reasoned” response to PFAS. But a Trump administration will likely be less inclined to address PFAS contamination through enforcement than a Harris administration and may revise some of the most recent USEPA policies addressing PFAS, including its PFAS Superfund enforcement policy. The Trump administration also might attempt to work with Congress to develop statutory exemptions for parties impacted by PFAS contamination, including municipal airports, fire departments and farmers who have applied biosolids to their land. The administration also might attempt to narrow the definition of PFAS in certain regulations or exclude certain compounds and essential uses of compounds from PFAS regulations, such as fluoropolymers.

One theme in common for either a Harris or a Trump administration is the increased use of technology in environmental enforcement. The past three administrations have overseen a wholesale shift to electronic reporting and remote management of regulated entities. The next administration is likely to continue to adopt new environmental monitoring and reporting technologies including drones, fence-line monitors and artificial intelligence. Despite the use of similar, technology-based enforcement tools, the scope and allocation of enforcement resources will significantly differ in a future Harris or Trump administration.

A future Trump administration will likely follow the same approach as the prior Trump administration, which focused on enforcement of the nuts and bolts of established regimes within environmental law, such as remediation of historic sites of contamination, with an emphasis on driving such brownfields back into productive use via cleanup and redevelopment. Like its prior incarnation, the next Trump administration will likely emphasize state-led efforts on environmental enforcement.

A Harris administration will also continue enforcement in those types of cases, but will follow and possibly build on the <a href="https://www.epa.gov/enforcement/national-enforcement-and-compliance-initiatives" target="_blank" rel="noreferrer noopener">National Enforcement and Compliance Initiatives</a> outlined by the Biden administration for fiscal years 2024 – 2027.&nbsp; A Harris administration will likely continue to focus enforcement efforts on emerging contaminants including PFAS, ethylene oxide and other chemicals of potential concern. We also expect the Harris administration to continue the approach of the Biden administration to use enforcement actions as a tool to expand agency jurisdiction. This use of enforcement proceedings was showcased in the Title VI context described above, where USEPA threatened to withhold federal funding from Louisiana and, in a separate proceeding, reached a settlement agreement with Michigan to resolve Title VI complaints, requiring Michigan to address cumulative impact mandates for Title VI compliance (despite a court previously striking this down as illegal in Louisiana). The Harris administration will also continue the Biden administration’s prioritization of enforcement cases to advance environmental justice considerations, including by prioritizing resource allocation for investigation and enforcement against facilities located in areas with lower incomes and higher minority concentrations.

The Great Environmental Divide – What to Expect from the Harris and Trump Administrations

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