When the Biden Administration took office in January, 2021, President Biden issued an Executive Order requiring all federal agencies to review all agency actions taken between January 20, 2017 and January 20, 2021. Along with the Executive Order, the Biden Administration released a non-exclusive list of agency actions taken during that time that were specifically identified for review. Many of the actions included in that list were environmental regulations passed by the Trump Administration that had significantly altered the way that federal environmental statutes were implemented. Since the Biden Administration took office, agencies have been taking steps to review, reverse, or otherwise revise a variety of environmental regulations adopted during the Trump Administration. The following is an overview of some of those efforts and their progress so far.
Migratory Bird Treaty Act
The Migratory Bird Treaty Act (“MBTA”) was originally passed in 1918 to implement a treaty signed by the United States and Canada in order to protect and conserve migratory bird species. The MBTA makes it unlawful to “pursue, hunt, take, capture, or kill” any migratory bird. 16 U.S.C. § 703(a). The term “take” is further defined to mean to “pursue, hunt, shoot, capture, collect, kill, or attempt to pursue, hunt, shoot, capture, collect, or kill[.]” 16 U.S.C. § 715n. Fish and Wildlife Service (“FWS”) is responsible for implementing the MBTA, including keeping a list of bird species protected by the Act.
Although the text of the MBTA does not directly address incidental take – the unintentional take of a migratory bird as the incidental result of an otherwise lawful activity – the longstanding practice adopted by FWS and upheld by most reviewing courts has been that the MBTA prohibits both intentional and incidental take of migratory birds. On January 7, 2021, FWS under the Trump Administration published a final rule in the Federal Register concluding that the MBTA does not prohibit incidental take. In other words, only purposeful take of migratory bird species would have been prohibited by the MBTA under the January 7 rule. Although the January 7 rule was meant to codify a 2017 opinion from the Solicitor of the Department of Interior that the MBTA did not prohibit incidental take of migratory birds, a federal court had overturned the opinion months earlier in August, 2020 after rejecting the Solicitor’s conclusion.
The January 7 rule was identified by the Biden Administration for particular review. On May 6, 2021, FWS published a proposed rule to reverse the January 7 rule so that incidental take would once again be prohibited by the MBTA. FWS cited several court opinions and decades of precedent to support its decision. The final rule to reinstate the prohibition against incidental take under the MBTA was published on October 4, 2021 and will take effect on December 3, 2021. To read the final rule, click here.
Endangered Species Act
The Endangered Species Act (“ESA”) of 1973 is regarded as the key piece of federal legislation for wildlife conservation. Both the Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively “The Services”) are responsible for carrying out the ESA. FWS is responsible for terrestrial and freshwater organisms, while NMFS is responsible for marine wildlife an anadromous fish. The Services are tasked with identifying species to list under the ESA as either “threatened” or “endangered.” A threatened species is one that is “likely to become an endangered species within the foreseeable future,” while an endangered species is one “which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532. Once a species is listed under the ESA, it receives the protections of the Act. Those protections include a prohibition on “take” which is defined to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532. Additionally, the Services may designate “critical habitat” for a listed species, which is defined by the ESA as both “the specific areas within the geographical area occupied by the species […] on which are found those physical or biological features essential to the conservation of the species” and “specific areas outside the geographical area occupied by the species [… that] are essential for the conservation of the species.” 16 U.S.C. § 1532. Under the text of the ESA, only species listed as endangered are automatically granted all ESA protections. Threatened species would need to have each ESA protection specifically assigned to them through the regulatory rulemaking process. However, FWS has historically used a regulation referred to as the “Blanket 4(d) Rule” to automatically grant threatened species the same protections as endangered species in order to more efficiently protect species listed as threatened.
In 2019, and 2020, the Trump Administration adopted a host of new regulations altering how the ESA was administered. In 2019, the Services passed a regulation repealing the Blanket 4(d) rule so that any species listed as threatened would require a separate rulemaking assigning it ESA protections. Also in 2019, the Services adopted a regulation revising the process by which federal agencies consult with the Services prior to taking an agency action to ensure that the action will not harm listed species or designated critical habitat so that federal agencies would need to only consider effects to listed species that were “reasonably certain to occur.” Other regulations adopted by the Services during this time altered the way that species were identified for listing, the way that critical habitat was designated, and adopted a definition for “habitat” that was limited only to areas in which a species currently occupied. For more information on these regulations, click here and here.
All of the regulations revising implementation of the ESA were identified for review by the Biden Administration. On June 4, 2021, the Services released an announcement that after their initial review, they had opted to revise, rescind, or reinstate five ESA regulations. Those include the regulations adopting a definition for “habitat,” repealing the Blanket 4(d) rule, revising the agency consultation process, and changing the way that species are listed and critical habitat is designated. Currently no proposals to formally change those rules have been published.
Waters of the United States
The Clean Water Act (“CWA”) is the primary federal statute regulating pollution in the nation’s waterways. Under the CWA, all direct discharges of pollutants into waterbodies protected by the Act are unlawful unless the discharge has been approved by a permit issued by either the Environmental Protection Agency (“EPA”) or the United States Army Corps of Engineers (“Corps”). Because the prohibition on unpermitted discharges only applies to waters that are under the jurisdiction of the CWA, implementation of the statute depends on identifying the waterbodies that are protected by it. The text of the CWA states that only “waters of the United States” (“WOTUS”) fall under the Act’s jurisdiction. Since the CWA was passed in 1972, EPA has struggled with how to appropriately define (“WOTUS”). For a complete timeline of the WOTUS definition, click here.
In 2015, the Obama Administration implemented a new regulatory definition of WOTUS that was considered more expansive that previous definitions. The 2015 WOTUS rule was controversial, and by the time the Trump Administration repealed the 2015 rule in late 2019, the rule had been prevented from taking legal effect in more than half of the states. In 2020, the Trump Administration adopted a new regulation to define WOTUS known as the Navigable Waters Protection Rule (“Navigable Waters Rule”). The Navigable Waters Rule is regarded as significantly narrower than the 2015 rule, limiting the types of waters covered by the CWA to six distinct categories.
The Biden Administration included the Navigable Waters Rule on its list of regulations that would be receiving particular review. In June, 2021, EPA announced that it had reviewed the Navigable Waters Rule and would once again begin the process of revising the definition of WOTUS. Initially, EPA’s plan was to conduct two separate rulemakings, one to repeal the Navigable Waters Rule and return to the pre-2015 regulatory regime for WOTUS, and then a second rulemaking to create a new WOTUS definition. EPA began holding public meetings in August, 2021 to receive feedback from interested stakeholders on their perspectives concerning the definition of WOTUS.
On August 30, 2021, a federal court issued an order vacating the Navigable Waters rule. In response, EPA and the Corps have halted implementation of the Navigable Waters Rule, and will instead be interpreting WOTUS according to the pre-2015 regulatory regime until further notice. EPA is continuing to move forward with the rulemaking actions it announced in June, and has stated that a proposed rule to formally restore the pre-2015 regulations could be issued as early as November.
National Environmental Policy Act
The National Environmental Policy Act (“NEPA”) was signed into law in 1970. The purpose of the Act is to “encourage productive and enjoyable harmony” between humans and the environment. 42 U.S.C. 4321. To achieve this goal, NEPA requires all federal agencies to engage in an environmental review process prior to taking any agency action in order to determine the impacts that action will have on humans and the environment. NEPA and its regulations are implemented by the Council on Environmental Quality (“CEQ”). In 1978, CEQ passed a series of regulations establishing the framework that agencies would use to undertake the NEPA review process. While CEQ has made technical changes to those regulations over the years, for the most part the regulatory structure of NEPA has remained unchanged since 1978.
In 2020, the Trump Administration adopted a series of regulations that constituted the most significant change to NEPA in decades. Of the regulatory changes made in 2020, one of the most controversial was the decision to eliminate the requirement to consider “direct,” “indirect,” and “cumulative” impacts that an agency action would have to the environment during the NEPA review process. Instead, agencies would only be required to consider impacts which are “reasonably foreseeable and have a reasonably close relationship to the proposed action or the alternatives.” This was considered a major change to the NEPA process because it meant that agencies would no longer have to consider the impacts of their actions that were further removed from the action area, or the incremental impact of the immediate federal action when it is added to the impacts of all previous federal actions. For more information on the 2020 NEPA regulations, click here.
Like the other regulations discussed above, the 2020 NEPA regulations were identified by the Biden Administration for particular agency review. On October 7, 2021, CEQ published a Notice of Proposed Rulemaking (“NPRM”) in the Federal Register to announce its plans for restructuring the NEPA regulations, and to introduce a proposed rule that represents the first step in the overall review process. According to CEQ, it will engage in a series of rulemakings to propose revisions to the 2020 regulations. The “Phase 1” rulemaking initiated by the October 7 NPRM will focus on a specific set of provisions, while “Phase 2” is expected to more broadly revisit the 2020 regulations and ensure an efficient and effective NEPA process. To kick off phase one, the proposed rule announced in the NPRM would restore the requirement that agencies consider the direct, indirect, and cumulative impacts of their proposed actions during NEPA review.
The comment period for the NPRM is open until November 22, 2021. More information can be found here.
The regulations discussed above are not the only environmental regulations identified by the Biden Administration for review. However, they are the regulations that federal agencies have so far announced concrete plans to repeal or revise. Each of them also have the potential to impact agriculture, either by governing impacts to wildlife and the environment, or by determining which waterbodies receive federal protection. The National Agricultural Law Center will continue to provide updates as further regulatory actions are taken.
For more National Agricultural Law Center resources on the ESA, click here.
For more National Agricultural Law Center resources on the CWA, click here.
For more National Agricultural Law Center resources on the MBTA and NEPA, click here.