In the latest installment of our video series on important regulatory and legislative events in the first 100 days of the Biden Administration, Associate Cole Killion discusses Biden's nominations for the Environmental Protection Agency (EPA), an update on two significant environmental court cases and  the latest on the EPA's budget.

Associate Carie Cartwright provides an update on the Joint Comprehensive Plan of Action's (JCPOA) return to compliance. 

Partner Brendan Quigley gives us the latest out of the Department of Justice (DOJ) including who President Biden intends to nominate for the Criminal Division and the head of the Drug Enforcement Administration. 

Partner Jeff Oliver provides an update on Antitrust which includes the latest from FTC commissioner Christine Wilson and antitrust bills currently in consideration. 

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

 

This week, President Biden nominated Rhadika Fox as EPA Assistant Administrator for Water, and Michal Freedhoff as EPA Assistant Administrator for Chemical Safety. The Senate confirmed Biden’s pick of Brenda Mallory as Chair of the White House Council on Environmental Quality and held a confirmation hearing for Todd Kim, Biden’s nominee for Assistant Attorney General for Environment and Natural Resources at the Department of Justice. 

This week saw two significant environmental court cases resolved. Surprising environmental advocates, the Justice Department declined to temporarily shut down the Dakota Access Pipeline as the project undergoes review. And, following Biden’s withdrawal of a Trump Executive Order allowing fossil fuel exploration and drilling in parts of the Arctic and Atlantic Oceans, the Ninth Circuit Court of Appeals dismissed the case. This action ends any immediate discussion of drilling  in Alaska’s coastal areas.

Finally, President Biden released a preliminary budget for EPA – at just over $11 billion, if enacted, EPA would see a 21% increase in its funding for 2021 to 2022.

At an April 7 press briefing, U.S. State Department spokesperson Ned Price said that the U.S. is prepared to take the steps necessary to return to compliance with the Joint Comprehensive Plan of Action, or the JCPOA, including by lifting sanctions that are inconsistent with the JCPOA. When the JCPOA went into effect in January 2016, the U.S. had committed to lifting all “nuclear-related” sanctions imposed against Iran, which mainly are comprised of the “secondary” sanctions that the United States adopted to extend the scope of U.S. sanctions against non-U.S. personsin connection with various energy-related transactions.  At the time of JCPOA implementation, the U.S. also authorized foreign entities owned or controlled by U.S. persons to engage in certain activities that otherwise would be prohibited under the Iran sanctions program.   However, Price noted that he was not “in a position…to give…chapter and verse” on what sanctions relief might resemble, and added that the U.S. would not “offer any unilateral gestures or incentives to sweeten any sort of deal or to induce Iran back to the negotiating table.”

 

Earlier this week, President Biden announced his intention to nominate Kenneth Polite, as head of DOJ’s Criminal Division, the largest division in the Department of Justice.  Mr. Polite is currently a partner at Morgan Lewis, he previously served during the Obama Administration as US Attorney for the Eastern District of Louisiana between 2013 and 2017, and earlier in his career served as an Assistant US Attorney in the Southern District of New York.

 

For much of the Trump administration, DOJ’s Criminal Division was headed by individuals who either had not yet been confirmed by the Senate or who were in serving in an acting capacity. The relatively quick announcement of President Biden's intent to nominate Mr. Polite and his anticipated confirmation by the Senate signals Mr. Biden's focus on criminal justice and enforcement issues and reinforces expectations that Criminal Division policy will be an area of focus for DOJ and for the administration more broadly.

 

Notably, the president has not yet named nominees for lead the Justice Department's Civil, Antitrust, National Security, or Tax divisions

 

The President also announced his intent to nominate Anne Milgram, New Jersey's former Attorney General, as head of the Drug Enforcement Administration. Although, historically and with some notable exceptions, the DEA is not generally associated with white-collar criminal enforcement, it has played lead role in investigations arising out of the opioid epidemic, which have touched on pharmaceutical manufacturers and distributors and health care providers. We expect the DEA’s focus on this issues to continue in the Biden administration.

 

Also, consistent with an increased focus on criminal enforcement, the 2022 proposed federal budget was released on April 9. It added $45m for FBI and $40m for USAOs to handle increased caseloads – i.e., more prosecutors and agents

 

FTC commissioner Christine Wilson has said that she would prefer to see the outcomes of recent antitrust cases against big tech companies before the country undertakes to overhaul its antitrust laws. Wilson said the “several existing challenges to Big Tech companies” should be considered before Congress attempts to change US antitrust laws.

There are a lot of antitrust bills currently consideration.  Missouri Senator Josh Hawley recently rolled out his own new bill this week. Titled “Trust-Busting for the Twenty-First Century Act,” the legislation would forbid acquisitions by companies with market caps above $100 billion. The bill would also heighten penalties for anti-competitive behavior, including forfeiture of profits made during the anticompetitive conduct. 

Also, Senators Cruz, Hawley and Lee introduced legislation this week seeking to rescind Major League Baseball’s antitrust exemption, which has been in effect for 100 years. The bill comes in response to MLB moving its All Star game from Atlanta after Georgia’s controversial new voter laws. 

 

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