Thought Leadership

Baker Botts Washington Recap - Episode 10

Client Updates

In the latest installment of our video series on important regulatory and legislative updates, Partner Brendan Quigley gives an update on the latest out of the Department of Justice. The DOJ announced the creation of a National Cryptocurrency Enforcement Team (NCET), to tackle complex investigations and prosecutions of criminal misuse of cryptocurrency. The Department also announced the launch of the department's Civil Cyber-Fraud Initiative. The policy initiative of cybersecurity and the tool of the government is using the False Claims Act. 

Associate Greta Carlson provides an update on the Biden Administration's environmental and natural resources actions. President Biden signed proclamations restoring protections for three national monuments that were previously changed by President Trump in 2017. Biden’s proclamations re-establish the boundaries set by the Obama administration in Bears Ears and Grand Staircase-Escalante National Monuments in Utah and restored restrictions on commercial fishing in the Northeast Canyons and Seamounts Marine National Monument. 

Other updates include:

  • The White House announced proposed revisions to its NEPA implementing regulations that would, if finalized, restore expanded considerations for major project analyses under NEPA 
  • The Senate confirmed Biden's nomination of Tracy Stone-Manning as head of the Bureau of Land Management
  • Biden appointed Debra Shore as Administrator for EPA Region 5

  • Th EPA released its Draft Strategic Plan outlining its priorities for the next four years

  • The EPA also announced its PFAS strategy roadmap this week

 

 

 

We continue to see DOJ’s priorities take shape in the new administration. On October 6, for example, DOJ announced the creation of a National Cryptocurrency Enforcement Team (NCET), to tackle complex investigations and prosecutions of criminal misuse of cryptocurrency. This team draws from multiple sections within DOJ. The main focus seems to be on detecting, investigating, and prosecuting individuals and businesses who are using cryptocurrency to launder the proceeds of illegal activity.

 

The same day, the Department announced launch of the department’s Civil Cyber-Fraud Initiative. This really is an example of the government once again using conditions attached to the provision of federal funds to advance a policy initiative. Here, the policy initiative is cybersecurity and the tool of the government is using is the False Claims Act. The statute, which dates back to the Civil War, provides for significant monetary penalties for making false statements or certifications in connection with the receipt of funds. Here, various provisions of the federal contracting regulations require contractors to certify they employ basic security controls, require them to report cyber incidents in a timely manner, and impose other conditions related to cybersecurity. We expect to see civil False Claims actions alleging contractors violated these provisions, although a key issue, in light of recent case law, will be how material these provisions are to obtaining payment from the government in a given case.

 

President Biden signed proclamations restoring protections for three national monuments that were previously changed by President Trump in 2017. Biden’s proclamations reestablish the boundaries set by the Obama administration in Bears Ears and Grand Staircase-Escalante National Monuments in Utah and restored restrictions on commercial fishing in the Northeast Canyons and Seamounts Marine National Monument. The decision to restore Bears Ears to 1.36 million acres and Grand Staircase to 1.87 million acres was controversial, particularly in Utah where local tribes supported greater protections and miners and ranchers opposed restricted use of the land.

The White House announced proposed revisions to its NEPA implementing regulations that would, if finalized, restore expanded considerations for major project analyses under NEPA. The proposed rulemaking is the first of a two phase process to reverse amendments made to NEPA under the Trump Administration. In this initial phase, the proposed rule would restore the prior definitions of direct, indirect, and cumulative effects. The second phase is expected to address climate change and environmental justice concerns. For more details on the proposed revisions and their impacts, visit the Baker Botts client alert at the address on your screen.

In a close vote, the Senate confirmed Biden’s nomination of Tracy Stone-Manning as head of the Bureau of Land Management. Stone-Manning previously served as director of the Montana Department of Environmental Quality. Her nomination was contentious due to her alleged involvement in a tree spiking incident in the 80s.

Biden appointed Debra Shore as Administrator for EPA Region 5—which covers the mid-west. Shore previously served as a commissioner on the Metropolitan Water Reclamation District of Greater Chicago and LGBTQ Victory Institute Board Chair. Biden also appointed Adam Ortiz, a Maryland county official, as Administrator for Region 3—which encompasses the mid-Atlantic region. The White House has not yet named administrators for the remaining 8 regions nor announced a timeline for doing so.

The EPA released its Draft Strategic Plan outlining its priorities for the next four years. The seven overarching goals presented in the Draft Plan focus on protecting human health and the environment. The Draft Plan prioritizes protecting environmental justice communities. Public comments on the Draft Plan are due on or before November 12. For more details on the draft strategic plan see the Baker Botts client alert on your screen.

The EPA also announced its PFAS Strategy Roadmap this week. The Roadmap outlines key actions that the EPA intends to take over the next three years to restrict, remediate, and research PFAS. Notably, the Roadmap emphasizes the EPA’s intent to increase regulation of PFAS and pursue enforcement actions against PFAS users and manufacturers.

 

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