In the latest installment of our video series on important regulatory and legislative events in the first 100 days of the Biden Administration, Baker Botts Associate Francesca Eick provides an update on the latest Environment Protection Agency (EPA) news and the announcement regarding the members of the White House Environmental Justice Advisory Council. 

Partner Tom Holmberg discusses President Biden's "American Jobs Plan" which was unveiled on March 31. 

Associate Emily Hutson gives us the latest antitrust update which includes the Federal Trade Commission's (FTC) announcement to abandon their lawsuit against Qualcomm, Inc. 

Partner George Fibbe provides an update on one of the Biden Administration's earliest actions involving oil and gas leases on federal lands. 

We will continue to provide weekly updates on the relevant administrative and legislative actions through the first 100 days. 

This week, EPA announced that it will dismiss more than 40 outside experts appointed by President Trump to EPA’s Science Advisory Board and Clean Air Scientific Advisory Committee. EPA Administrator Michael Regan emphasized that this move is aimed at improving the agency’s scientific integrity.

Also this week, the White House announced the members of the White House Environmental Justice Advisory Council. Environmental justice is a top priority for the Biden Administration going forward.

The 26-member council includes several prominent activists, including Dr. Robert Bullard—often described as the Father of Environmental Justice, Peggy Shepard—founder of We ACT for Environmental Justice, and Catherine Coleman Flowers—founder of the Center for Rural Enterprise and Environmental Justice.

In other environmental justice news, this week EPA also withdrew a Clean Air Act permit for a major refinery in the U.S. Virgin Islands over environmental justice concerns. EPA will reconsider the permit in light of new information and President Biden’s executive orders.

On March 31, 2021, President Biden unveiled his “American Jobs Plan.”  The plan is intended to transform U.S. infrastructure by, according to President Biden, “invest[ing] in America in a way we have not invested since we build the interstate highways and won the Space Race.” 

The plan is expected to cost $2 trillion over eight years.  Its ambitious scope includes funding for obvious infrastructure projects such as highways and bridges.  It also includes plans to:

• Improve and modernize infrastructure such as drinking water; power grids and broadband

• Produce, preserve and retrofit schools, commercial buildings and homes

• Expand access to home and community based care for the elderly and disabled; and

• Invest in Research and Development for manufacturing

Although this expansive plan would affect many sectors of the U.S. economy, a large focus is the development and advancement of clean energy, the electrification of the economy, and the reduction of greenhouse gases through, among other things, the deployment of carbon capture use and storage. The American Jobs plan will require congressional action and will, no doubt, involve some degree of bipartisan negotiations and compromise.  Given its broad scope, whatever plan is passed is likely to have profound effect on the regulatory landscape of the United States. 

On Monday, the FTC announced that they were abandoning their lawsuit against Qualcomm, Inc.  The decision not to seek Supreme Court review ends a four-year litigation which began in the closing days of the Obama administration.  The FTC won at trial, but the decision was reversed by a Ninth Circuit decision issued last year. 

FTC Acting Chairwoman Rebecca Slaughter, who was not serving on the commission when the Qualcomm lawsuit was filed, said in a statement that although she agreed with the trial court’s decision that Qualcomm violated the antitrust laws, the FTC would be facing “significant headwinds” if it tried to overturn the decision at the Supreme Court. 

In her statement, Slater emphasized: “Now more than ever, the FTC and other law enforcement agencies need to boldly enforce the antitrust laws to guard against abusive behavior by dominant firms, including in high-technology markets and those that involve intellectual property.” 

At the time the Qualcomm lawsuit was filed, it represented a rare example of US antitrust officials taking action to stop allegedly anticompetitive conduct by a major company to protect its dominant market position.  Since then, such cases have been on the rise: the FTC has sued Facebook, and the DOJ Antitrust Division has filed complaints against Google.  

Although the FTC has chosen not to pursue the Qualcomm case further, the influx of new cases against large technology companies, the recent nomination of Lina Khan to the Commission, and Senator Klobuchar’s proposal of the Competition and Antitrust Law Enforcement Reform Act (CALERA) all indicate that US antitrust enforcement will continue to be robust under the new Biden administration.  

Lastly, an update on one of the Biden Administration’s earliest actions involving oil and gas leases on federal lands. You’ll recall that while the president’s executive orders targeted new oil and gas leases on federal lands, they did not prohibit permitting associated with existing leases. However, the Interior Department changed its internal process for 60 days to require all such permits to be approved by one of nine specific, high-level political appointees at its DC headquarters.

So this was widely reported as a moratorium on permitting. And indeed, the number of permits to drill granted during the first sixty days of the Biden administration was dramatically lower than those in the last 60 days of the previous administration. That Order, 3395, was set to expire March 21, but the administration modified and extended it on March 19. The new DOI memorandum lists specific actions that require approval from the Assistant Secretary for Land and Minerals Management, including reinstatements of terminated oil and gas leases, extensions of permits to drill, and lease suspensions.

The new memo does not state that it is temporary and has no set expiration. Although extensions of APDs are included, APDs themselves aren’t listed. It is not entirely clear to what extent this revised memo will result in a continued bureaucratic bottleneck. Many in the industry will be monitoring the number of permits granted to see if the pace picks up.

 

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