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Environmental Enforcement Trends & Changing Priorities

Client Updates

The Biden campaign promised significant changes in direction at the U.S. Department of Justice, with a renewed focus on environmental enforcement. Though the number of civil and criminal cases have shown a steady decline over the last decade, many expect to see an uptick in inspections and enforcement cases in 2021 and beyond as budgets and staffing resources are redirected from other areas to focus on environmental violations.  Particular areas of focus for the Biden Administration are likely to include actions implicating climate change and environmental justice concerns, especially those in the energy sector.  The Biden Administration is also expected to rollback various Trump-era enforcement reforms.  For example, supplemental environmental projects and third-party payments in environmental cases are likely to return.  Combined with more expensive mitigation requirements, the costs associated with settling federal environmental enforcement cases are likely to increase.  Departing from the Trump EPA’s focus on “national compliance initiatives,” the Biden Administration is also likely to resurrect various national enforcement initiatives, including those targeting modifications to energy facilities under the New Source Review program.  One enforcement priority that is unlikely to see significant shifts is the area of worker safety, which has remained a high priority since the Obama Administration.

Additionally, a new presidential administration may also lead to changed priorities for environmental organizations like Sierra Club and Natural Resources Defense Council.  After fighting the Trump Administration’s regulatory reforms and rollbacks for the last four years, citizen groups are now expected to refocus on enforcement actions, including citizen suits under the Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act.  These groups are better funded, more sophisticated, and more litigious than ever before, and the energy sector should anticipate an increase in citizen suits and should also be alert to FOIA requests submitted to federal and state agencies seeking compliance records.  Sophisticated national organizations will pursue larger, more complex cases with the potential for billion-dollar impacts.

Looking back on 2020, EPA inspections were down across the country, due at least in part to the COVID pandemic.  Additionally, EPA and various states issued COVID enforcement discretion guidance providing some relief for industries struggling to assure compliance due to COVID-driven reductions in workforce and contractors.  By the end of the year, many of those policies had expired, although EPA has continued to give assurance that the agency will use its enforcement discretion to consider compliance relief for facilities impacted by COVID on a case-by-case basis.

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