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In its first year in office, the Biden administration has, to its credit, reversed a number of anti-environmental policies initiated by former President Donald Trump. Gone is the previous administration's infamous "two-for-one" policy, under which federal agencies had to eliminate two regulatory requirements for every new regulation they proposed. Numerous Trump-era initiatives that cut back needed air and water quality protections have also been rescinded. And, thankfully, the U.S. Environmental Protection Agency (EPA) and other federal agencies are once again focused on responding to the mounting dangers posed by the climate crisis. Given these steps forward, it is perplexing that the current administration has not yet restored a critical environmental tool that has proven workable and highly beneficial in past years: EPA's Supplemental Environmental Projects (SEPs).

Addresses by national leaders to the United Nations General Assembly are often broad expressions of lofty ideals, and President Joe Biden's speech Tuesday fell squarely into that category. It covered an extraordinary panoply of global challenges and policy concerns, including controlling the COVID-19 pandemic, rebuilding and strengthening global alliances and regional initiatives, curbing terrorism, protecting human rights (including the rights of women and workers) and lifting up democracy. Biden also committed the United States to advancing human dignity, combating corruption and seeking peace in areas of conflict around the world.

In the first segment of its Sixth Assessment, issued earlier this month, the IPCC report states that it "provides a full and comprehensive assessment of the physical science basis of climate change that builds upon the previous assessments ... and considers new information and knowledge from the recent scientific literature, including longer observational data sets, new scenarios and model results." This authoritative document draws conclusions that are deeply alarming. While (like all prior assessments) the report does not recommend specific remedial actions, the latest report implicitly suggests an urgent need for collective action to avoid natural devastation and massive future human catastrophes.

Recent events have dramatized the urgent need for prompt and bold action to respond to climate change. Raging rivers in Germany and Belgium, unheard of "heat domes" over large sections of North America, and uncontrolled wildfires and flooding around the globe, have made it absolutely clear that humankind must quickly limit the emission of greenhouse gases and adapt to the increasingly calamitous consequences of climate disruption. In view of this situation, what is and ought to be the substance of environmental leadership?

President-elect Joe Biden is set to name Michael Regan to lead the U.S. Environmental Protection Agency (EPA). Regan is currently the secretary of the North Carolina Department of Environmental Quality, and his past experience includes earlier stints at EPA and the Environmental Defense Fund. He would be the first Black man to serve as EPA administrator.

The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests.

As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements -- and citizen suits more generally -- interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.

Over the past few years, the U.S. Department of Justice (DOJ) has shown increasing hostility to the use of Supplemental Environmental Projects (SEPs) in settlements of federal environmental enforcement cases. Aside from a series of ever-tightening SEP policies, however, DOJ has never asserted in court that these projects are unconstitutional. At least not yet.

In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reported the following on Wednesday: "More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state regulators." As disturbing as this news is, it is absolutely no surprise.