Follow the Money – What the Biden Budget Tells Us About Environmental Priorities | Kilpatrick Townsend & Stockton LLP

On April 9, 2021, the Office of Management and Budget sent the Biden Administration’s Discretionary Budget Request to Sen. Patrick Leahy, D.-VT, chairman of the Appropriations Committee (Biden Budget) This $1.5 Trillion request covers all corners of funding the government for FY-22 and sets forth broad and ambitions goals with the proposal directed toward large categories – Investing in Public Health; Creating an Economy that Works for All; Tackling the Climate Crisis; Advancing Equity; and Restoring America’s Global Standing and Confronting 21st Century Security Challenges. Enclosure 2 of the Biden Budget contains the 2022 Discretionary Summary for Major Agencies and requests $11.2 billion for the U.S. Environmental Protection Agency (EPA), a $2 billion or 21.3 percent increase from the 2021 enacted level Although much of the “environmental” spending is focused on the Biden Administration’s pillars of combatting climate change and environmental equity, the Biden Budget provides a more detailed window into EPA’s priorities for the coming year. This window was further opened by the release of EPA’s detailed FY 2022 EPA Budget on May 26th. (EPA Budget). The EPA Budget builds on the broad directives of the Biden Budget and further describes how the agency has designed its budget to further the Biden’s Administration’s environmental goals, focusing on four cross-cutting priorities: Tackling the Climate Crisis through Science; Advancing Environmental Justice; Supporting State, Tribal and Local Partners; and Expanding the Capacity of EPA. Although EPA sets out broad categories for budget priorities, the actual breakdown identifies spending priorities beyond the assigned category.[1]

Help Wanted

The Biden Budget and EPA Budget supports a restoration of staffing at EPA, directing $110 million to restore EPA’s “critical staff capacity” and to rebuild programmatic capabilities. The EPA Budget notes that EPA has cut funding by 27 percent and lost nearly 1000 staff over the past four years. In addition, increased hiring is needed to address growing concerns with the “graying” of EPA’s workforce, with almost 30% of EPA’s workforce eligible to retire in one year and over 43% in the next five years. It can be anticipated that there will be hiring at all levels of EPA from the general office staff to the PhD scientists. In addition, the EPA Budget also specifically prioritizes its legal staff, including an additional $24.8 million to increase the capacity of EPA’s legal advice programs.

More Heads= More Enforcement

As EPA beefs up its staff, it is also planning a renewed emphasis on enforcement.[2] EPA plans to pay extra attention to “bad actors” in communities with multiple pollution sources and develop a specialized criminal enforcement task force to address environmental justice issues. EPA is also planning to work with its state, local and tribal partners to leverage advances in monitoring and information technology, with increased efforts to modernize and increase utilization of both its ISIS and ECHO databases.

Climate Change – The Big Kahuna

The EPA Budget requests $1.8 billion to tackle the climate crisis, with approximately half also directed for the dual purposes of addressing both climate impacts and environmental justice. The list of climate change funding priorities is long and is captured under broad categories:

· Adapting to Climate Impacts through Infrastructure Investment. This funding priority will deliver results for both climate change and environmental justice by making major investments to help spur maintenance, upgrade and replacement of water and wastewater infrastructure and advance EPA’s efforts to address lead and other contaminants in drinking water.

· Tackling the Climate Crisis through Pollution Reduction. Cutting pollution that causes climate change also delivers a “two-fer” for EPA, claiming to deliver both climate change and human health/environmental justice benefits. The EPA Budget places the highest priority on addressing greenhouse gases, hydrofluorocarbons and diesel emissions. EPA also highlights investments in domestic recycling and solid waste infrastructure to build a “circular economy” and enable “resources to maintain their highest values.”

· Tackling the Climate Crisis through Research and Policy. The EPA Budget doubles EPA previous climate research resources (from $30 million to $60 million) to assess the consequences of climate change and vulnerability of communities and ecosystems to its impacts and identify and evaluate strategies to adapt to and build resilience to climate change risks.

· Tackling the Climate Crisis Together. EPA recognizes that environmental protection is a shared responsibility that crosses international borders and climate change cannot be solved by one government alone. The EPA Budget requests significant funding to identify and support these international efforts.

Environmental Justice – Has its Time Finally Arrived?

The Biden Budget requests more than $1.4 billion to invest in Environmental Justice, claimed to be the “largest investment in Environmental Justice in History.” A significant amount of that budget is directed to the development and implementation of a new “Accelerating Environmental and Economic Justice” initiative at EPA and the development of a new community air quality monitoring and notification program, which would provide real-time data in the places with the highest levels of exposure to pollution.

Addressing Environmental Justice through Cleanup of Contaminated Property

Building on the Environmental Justice concerns, the Agency requested increased funding for the Superfund Remedial Program to “clean up some of the Nation’s most contaminated land,” to restore the land to a productive use, and take advantage of an economic opportunity to increase value of property located in proximity to a National Priorities List (NPL) Site. The budget commits an additional $293 million into the Superfund Remedial Programs to start cleanup work at 20 National Priority List (NPL) sites and accelerate cleanup at over 15 NPL sites. The budget includes increased funding for EPA’s Brownfields program to assist States with “turning idle properties into hubs for economic revitalization”.

Per- and Polyfluoroalkyl Substances (PFAS) – Where will the Issue Land?

PFAS are a set of man-made chemicals that are often referred to as “forever chemicals.” The routes to regulate PFAS have been hotly debated. EPA’s budget highlights two of those regulatory routes by requesting approximately $75 million to accelerate toxicity studies and research to inform the regulatory effort to of designate PFAS as hazardous substances and setting enforceable limits for PFAS under the Safe Drinking Water Act. The budget also highlights the “EPA Council on PFAS” composed of senior EPA career officials with a charter to collaborate on “cross-cutting strategies” of advancing science, development of policy and regulations and engaging with affected states, tribes, communities and stakeholders.

Conclusion – A Big Budget Request with Big Plans and Big Goals

This discussion is just a taste of the EPA’s Budget Request. Each reading reveals new ideas and goals for investment of funds over the next year. EPA’s ambition is broad, although its breadth is not necessarily surprising. There are a few additional items to note from EPA’s proposed budget. First, perhaps in hopes of increasing the funding opportunity, EPA attempts to thread carefully its budget request into one or both of the Biden Administration’s priorities of Climate Change and Environmental Justice, although certain of the budget requests arguably do not fit neatly into either category. Second, as additional support for the Budget request, the EPA Budget claims that almost all of these requests will result in the creation of good paying American Jobs to support the Biden Administration’s American Jobs Plan.[3] Finally, EPA Budget is merely a request and the final budget may be more narrowly tailored to achieve the Agency’ wish list. It is clear, this first iteration of the budget affirms the importance of EPA and the many roles it plays in President Biden’s ambitious agenda.

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