Thought Leadership

Baker Botts Washington Recap First Year of the Biden Administration - Episode 6

Client Updates

In the latest installment of our video series on important regulatory and legislative events in the first year of the Biden Administration, Partner Tom Holmberg discusses the upcoming recess Congress will be taking until September. When Congress returns in September, we anticipate more discussions on infrastructure and other issues such as energy and the environment. 

Associate Scott Novak gives us the latest on the Justice40 Initiative. This effort sets a goal for 40 percent of the benefits from certain federal investments to go to disadvantaged communities. The Biden EPA also announced it will revisit a 2020 final regulation for water discharges from the over 900 steam electric power plants in the country. Lastly, he discusses the most recent senate updates including Biden's nominee to head the Department of the Interior's Bureau of Land Management, Tracy Stone-Manning, and newly confirmed Todd Kim as Assistant Attorney General for the Department of Justice's Environment and Natural Resources Division. 

Special Counsel Christine Ryu-Naya tells us more about Jonathan Kanter and his role to lead the Department of Justice's Antitrust Division. His nomination signals the Biden Administration's continued focus on antitrust reform and enforcement, but his private practice portfolio representing big tech heavyweights point to potential conflicts for any DOJ antitrust big tech investigations.  Given Congress’ upcoming August recess, we can expect the Judiciary Committee to schedule Kanter’s confirmation hearing sometime in the Fall.

Congress will be in recess for the next few weeks and this series will take a short break while Congress is out. Since his inauguration, we've seen some movement in Biden's agenda in a slew of nominations. However, his legislative ambitions may remain unfulfilled when the summer recess commences, and there's even been talk about cancelling or curtailing the August recess. When Congress returns in September, we anticipate more discussions on infrastructure and other issues such as energy & the environment.

Several White House offices recently released interim guidance for the Justice40 Initiative.  The Administration’s Justice40 effort sets a goal for 40 percent of the benefits from certain federal investments to go to disadvantaged communities. Covered programs include those related to climate change, clean energy, affordable and sustainable housing, legacy pollution cleanup, and clean water infrastructure. EPA programs that will have a role in Justice40 include the Drinking Water State Revolving Fund, the Brownfield Program, and Superfund Program, among others.  

Later this year, the White House will offer guidance on how to define a “disadvantaged community” and release a geospatial environmental justice mapping tool. 

Also, the Biden EPA announced it will revisit a 2020 final regulation for water discharges from the over 900 steam electric power plants in the country. EPA is expected to develop tighter limits for the plants, which produce electricity by heating water into steam using coal, natural gas, or nuclear power.

Tracy Stone-Manning, senior adviser for conservation policy at the National Wildlife Federation, will advance to the Senate floor as President Biden’s Nominee to head the Department of the Interior’s Bureau of Land Management. The Bureau manages one in every 10 acres of land, and 30 percent of the minerals, in the U.S.

And, on July 27 the Senate confirmed Todd Kim as Assistant Attorney General for the Department of Justice’s Environment and Natural Resources Division. Kim joins DOJ from an appointment at the Department of Energy, and brings a deep experience as an attorney, including over 10 years as the first solicitor general for the District of Columbia.

Last Tuesday, July 20, President Biden announced that he will nominate Jonathan Kanter to lead the DOJ Antitrust Division. Much like new FTC Chair Lina Khan, Kanter is seen as a progressive pick who has been an outspoken critic of Big Tech companies. His nomination signals the Biden administration’s continued focus on antitrust reform and enforcement.

Kanter was a staff attorney at the Federal Trade Commission before moving on to private practice, where he represented Microsoft in its DOJ settlement in the early 2000s, as well as in investigations by the European antitrust authorities. He has also represented companies in several high-profile mergers, including U.S. Airways in its merger with American Airlines and Cigna in its failed deal with Anthem. Kanter was the co-chair of the antitrust group at Paul Weiss before leaving to form his own antitrust boutique, Kanter Law Group, last year.

Notably, Kanter's private practice portfolio representing big tech heavyweights point to potential conflicts for any DOJ antitrust big tech investigations. 

In any event, Kanter can expect to hit the ground running. As mentioned in our last episode, following President Biden’s recent executive order on competition, the FTC Chair and Acting AAG of the Antitrust Division issued a statement announcing they would soon launch a joint review of the merger guidelines, with the goal of “updating them to reflect a rigorous analytical approach consistent with applicable law.” 

The position of Assistant Attorney General requires Senate confirmation. Given Congress’ upcoming August recess, we can expect the Judiciary Committee to schedule Kanter’s confirmation hearing sometime in the Fall.

Kanter’s nomination fills the top seat at DOJ antitrust, but there’s still one more left to fill at the FTC. Current Commissioner Rohit Chopra is awaiting confirmation to head up the Consumer Financial Protection Bureau, which will leave President Biden with one more nomination to fill out his antitrust slate.

 

ABOUT BAKER BOTTS L.L.P.
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