President-elect Joe Biden’s selection of environmental lawyer Brenda Mallory for a top spot in the new administration could help federal agencies improve their litigation record on climate change.
The presumptive nominee to lead the White House’s Council on Environmental Quality will be tasked with revamping Trump-era regulations and ensuring that federal agencies stay out of legal trouble by properly studying the full impacts of their decisions.
If confirmed by the Senate, Mallory will take the helm of CEQ at a time when judges have increasingly faulted federal officials under both the Obama and Trump administrations for failing to fully consider greenhouse gas emissions in their National Environmental Policy Act reviews. NEPA requires agencies to analyze and disclose the impacts of their actions, including approvals of highways, pipelines, and other projects.
CEQ, which oversees NEPA implementation, aimed to sidestep those losses in July by issuing a rule that eliminated a longstanding requirement that officials consider the cumulative impacts of their actions—a part of NEPA reviews that often touches on climate change. The Biden administration is expected to reconsider that move and quickly direct agencies to strengthen their climate analyses.
“Reversing the Trump-era NEPA rollbacks is going to be priority No. 1,” said Western Environmental Law Center lawyer Kyle Tisdel, a frequent foe of federal agencies in NEPA cases.
Next on the list, he said, will be issuing new guidance for how agencies should incorporate climate analysis into their reviews.
The result will be better outcomes in NEPA litigation during the Biden administration, legal experts say.
Agencies and project backers “should already realize that their environmental reviews are more likely to survive judicial scrutiny if they include cumulative impact review and lifecycle greenhouse gas analysis where appropriate,” said Columbia Law School professor Michael Gerrard, who directs the Sabin Center for Climate Change Law.
Social Cost of Carbon
Mallory served as general counsel for CEQ during the Obama administration—experience that will help her take swift action as head of the council, said Bracewell LLP attorney Ann Navaro, who worked with Mallory while Navaro was a lawyer for the Interior Department and Mallory was at CEQ.
“Brenda Mallory is a strong leader, so she’s really going to be able to hit the ground running, which is going to be a huge benefit to the White House and the federal agencies that are looking for guidance on environmental reviews,” Navaro said.
While Mallory was CEQ’s top lawyer, the council crafted guidance for agencies on how to study greenhouse gas emissions in their NEPA reviews. The goal was to ensure consistency across the executive branch and make NEPA reviews more defensible in court, said Venable LLP lawyer Fred R. Wagner. Trump officials later scrapped the memo.
CEQ is likely to revive the guidance under Mallory’s leadership, directing agencies to conduct robust analysis of the greenhouse gas emissions linked to federal actions and use available tools—including a metric called the social cost of carbon—to study the significance of those emissions.
Wagner called the Obama-era directive “rather modest” because it gave agencies flexibility in their climate analyses, and wasn’t binding. The Biden administration will likely opt for a similar approach, he said, because “the understanding has long been that the analysis of greenhouse gases is not a one-size-fits-all.”
Build on Obama
Some environmental advocates, however, are eyeing a more aggressive directive that would mandate broader climate considerations among agencies.
“It’s important not to just go back to what the Obama administration did, but to build upon that,” Tisdel said. “My sense is Brenda Mallory is going to have the room to operate that exceeds perhaps her abilities and her role as general counsel under the Obama administration.”
Climate analysis tools have already grown dramatically since the Obama administration issued its greenhouse gas guidance five years ago, said Perkins Coie LLP lawyer Edward Boling, who recently left his role as CEQ’s associate director for NEPA.
“I wouldn’t say what was done in 2016 is perfect for 2021 circumstances,” given the advances in analytical tools and the Biden administration’s more ambitious climate policy goals, he said.
While the White House and CEQ can move relatively quickly in issuing guidance documents and informal directives, dismantling the Trump-era NEPA regulations will be a much heavier lift.
The new rule, finalized in July, aims to streamline federal reviews by setting tighter deadlines and narrowing the scope of environmental impacts they consider.
The Biden administration will have to act “methodically” to change course, Venable’s Wagner said. And a formal rulemaking process would likely take years, entangle the agency in pitched battles with stakeholders, and trigger litigation.
In the meantime, agencies could still require cumulative impact and greenhouse gas analysis. The NEPA regulations that most agencies adopted prior to the Trump changes are still in effect, and the changes don’t specifically preclude agencies from taking cumulative impacts and greenhouse gas emissions into account, Columbia Law School’s Gerrard said.
During a webinar earlier this week—before news broke of her impending nomination—Mallory signaled support for a measured approach to policymaking.
“There has to be some level of realism about, what can you really do?” she said Dec. 15 in webinar convened by Sidley Austin LLP. “Is it more important to focus on trying to bat back everything that the prior administration did—or should you be thinking more strategically about what’s going to have the best and the longest-term outcome for the goal that you actually want?”