How emerging US environmental trends and initiatives may impact Australian law and policy

From his first moments as President of the United States, Joe Biden has embarked upon a process of creating the most comprehensive environmental justice platform of any American president in history.

Some of his very first executive orders set out the overarching climate change and environmental policy of the Biden Administration:

“ … to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of colour and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritise both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.” (Executive Order 13990, 20 January 2021)

Despite the geographic distance between our two countries, developments in American environmental law have long influenced Australia. As noted by many academics of the Boston College Law School, “Australia and the United States share a tradition of cooperation with respect to environmental matters.”

America’s National Environmental Policy Act, Endangered Species Act and National Historic Preservation Act were influential in the conceptualisation and drafting of Australia’s Environment Protection and Biodiversity Conservation Act 1999 (Cth). Likewise, the Clean Air Act and Clean Water Act were key considerations in the development of the Protection of the Environment Operations Act 1997 (NSW) and Contaminated Land Management Act 1997 (NSW).

It follows that any formative legislative and policy changes implemented by the Biden Administration may go on to shape the trajectory of Australian environmental and climate change law.

Key takeaways

In this respect, there are currently five key US environmental justice trends that will have relevance to Australian law and policy in the future and, in many respects, already are:

• Scientific evidence: an emphasis on consideration of scientific evidence in policy development and decision-making;
  
  
• Commitment to international obligations: a commitment to international treaty obligations and climate considerations infiltrating all parts of law and policy;
  
  
• Environmental justice: emerging environmental justice considerations in decision making which links public health, social costs and climate change;
  
  
• Federal environmental regulation: a focus on federal environmental regulation, as opposed to regulation at a state level; and
  
  
• Clean energy: the emergence of development of clean energy infrastructure as a key federal policy objective.

The evolving position in the United States may have a number of implications for Australia:

• increased focus on climate change issues and Paris Agreement treaty obligations as a component of America’s foreign policy may lead to heightened external pressures on Australia to take more pronounced executive and legislative action on climate change;
  
  
• a shift towards consideration of scientific evidence being an integral part of executive, regulatory and judicial decision-making in America may be influential in Australian decision making. For example, Australian courts may be more willing to accept scientific evidence on climate change when making determinations in relation to legal challenges to approvals or decisions linked to developments of significant environmental impact;
  
  
• the developing area of environmental justice may begin to grow as the basis for refusal of projects, objections and legal challenges to developments (including expansion of existing developments). Certainly, the ’right to health’ concept is gathering momentum, which is evidenced by the recent decision in Sharma v Minister for the Environment [2021] FCA 560, the final orders for which are available here (noting the Commonwealth intention to appeal the decision); and
  
  
• forthcoming US climate policy, executive and regulatory action, and any relevant judicial commentary, may form important precedents for decisions on similar issues in Australia and may go on to be integrated into Australian environmental law jurisprudence.  

Emphasis on scientific evidence 

The terms of President Biden’s Executive Order on ‘Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis’, quoted earlier, placed a clear emphasis on the consideration of robust scientific evidence as an integral component of environmental decision-making and policy development.

This has been further signalled in part by President Biden’s nominations for key environmental law and policy leadership roles, which appear to be focussed on bolstering the role of scientific evidence and environmental justice considerations in all aspects of federal governance. Key nominations and appointments include the:

• appointment of Michael Regan as Environmental Protection Authority (EPA) Administrator. The American Bar Association noted the challenges the U.S Environmental Protection Agency faces under the Biden administration, and that Regan possesses a wealth of prior experience not only as an EPA staffer, but also as an air-quality specialist;
  
  
• appointment of Gina McCarthy as National Climate Advisor, within the new White House Office of Domestic Climate Policy. Formerly director of the Harvard Center for Climate, Health and the Global Environment and EPA Administrator, McCarthy possesses specialisations in public health, social anthropology, and environmental health engineering, planning and policy. As articulated by Harvard, the focus of McCarthy’s work will be the translation of ‘evidence-based policy into action to improve health for all’ on a federal level;
  
  
• appointment of John Kerry as President’s Special Envoy for Climate Change. As Secretary of State under the Obama Administration, Kerry played a prominent role in the negotiation of the Paris Agreement. In his new capacity as Special Envoy, Kerry has articulated a particular focus on taking national and international measures to “hold the Earth’s temperature increase to the Paris’ stated 1.5 degrees” with a key environmental justice focus in mind as “a 3.7 to 4.5 increase centigrade, which is exactly the path we are on now invites, for the most vulnerable and poorest people on Earth fundamentally, unliveable conditions”; and  
  
  
• Nomination of David Uhlmann for Assistant Administrator for Enforcement and Compliance Assurance (EPA). Uhlmann is the director of the Environmental Law and Policy Program at the University of Michigan Law School, and prior to this was Chief of the Environmental Crimes Section of the Department of Justice. Recognised as the most preeminent environmental crimes prosecutor in America, the White House has noted Uhlmann’s extensive background in “environmental stewardship”, “corporate sustainability programs”, and “prosecuting polluters aggressively and fairly”.

Renewed commitment to international treaty obligations

President Biden has expressed a clear stance on America’s international treaty obligations from the outset of his administration, re-joining the Paris Agreement and on 27 January 2021, creating a Special Presidential Envoy of Climate. This new position in the Executive Office of the President, held by John Kerry, has a focus on the development of energy and climate policy.

These executive actions have been accompanied by a shift in the political discourse surrounding climate change. President Biden’s Executive Orders reframe climate change as a ‘climate crisis’ accompanied by “profound public health and economic crises” which require immediate action.

Secretary of State Antony Blinken likewise positioned the climate crisis as an external threat and a focal point of foreign policy and national security decision-making within the Administration.

In his recent April 2021 speech on climate leadership, Blinken, stated the current global conditions mean “taking into account how every bilateral and multilateral engagement -  every policy decision – will impact our goal of putting the world on a safer and more sustainable path. It also means ensuring our diplomats have the training and skills necessary to elevate climate in our relationships around the globe”.

This emerging American priority of utilising international relations to place climate action on the global agenda was also evident in President Biden’s convening of the Leaders’ Summit on Climate in April 2021, ahead of the UN Climate Change Conference (COP26) to be held in Glasgow in November 2021.

Climate considerations are increasingly infiltrating all aspects of government and decision making, a priority clearly set out in President Biden’s Executive Orders. Indeed, as noted by John Kerry, President Biden’s Order of 20 January 2021 positions climate as an ‘all-of-government enterprise’, instructing “every single [Cabinet and] agency officer to comprehensively factor climate consequences into every decision”.

This has been reflected by the approach adopted by Kerry and McCarthy as Special Envoy for Climate and National Climate Advisor respectively. Their offices recently undertook a “government-wide assessment.. sector by sector – electricity, transportation, building, industry, and lands and oceans” of opportunities to combat climate change.

As articulated by McCarthy in the April 22 2021 Press Briefing: “We see multiple pathways across all sectors, across all policy levers, across federal and state and local actions to grow our economy and reduce our emissions”.

Collectively, this suggests America may be likely to increasingly pursue alignment on climate action both internally, within the Cabinet and Government Agencies of all levels, and externally between itself and its international allies.

Environmental justice: linking public health and climate

President Biden’s Executive Orders on climate have linked public health and climate considerations. This forms a foundation of the environmental justice movement in the US and seeks to acknowledge that climate change has direct public health implications for both present and future generations.

The EPA has defined environmental justice in the American legal context as “the fair treatment and meaningful involvement of all people regardless of race, colour, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies”.

In pursuing environmental justice actions, the EPA has indicated that it will give specific consideration to:

• public health;
  
  
• cumulative impacts;
  
  
• social costs; and
  
  
• welfare impacts.

Climate action has been framed as essential from a human rights and ‘right to health’ perspective, a position supported by judicial commentary in decisions such as Aji P. v. Washington. In this case, the Washington Appellate Court dismissed an action alleging a right to a clean environment and stable climate on the basis that the remedy sought, a court order requiring Washington State to develop an enforceable state climate recovery plan, would be a violation of the separation of powers.

However, in its decision the Court provided extensive judicial commentary recognising the harm that greenhouse gas emissions pose to the environment, the future stability of the global climate, and human health, agreeing that a right to a stable environment is fundamental.

Such developments are already somewhat mirrored in Australia, with the Federal Court’s recent determination that the Commonwealth Minister for Environment owes a duty of care to Australian children to protect them from the long-term risks to human health and life posed by climate change. This decision was analysed in detail by our team in our recent Insight piece on the dramatic evolution of climate change litigation ahead of the 26^th United Nations Climate Change Conference of the Parties (COP26).  

Emerging federal model of regulation

Environmental justice action and environmental regulation has previously primarily occurred in America at a State level. However, President Biden has recently taken action to create a White House Office of Climate Policy led by Gina McCarthy, the former EPA Administrator under President Obama.

McCarthy is charged with developing and leading an ‘all of government’ climate change approach. Alongside the creation of the President’s Special Envoy for Climate Change, this suggests that these two new offices, in conjunction with the EPA and Department of Justice, will go on to play key regulatory roles.

The question arises as to whether the EPA will remain the key regulator and administrator of climate policy in this space, or whether a new model will emerge. This is likely to become clear with the Administration’s release of its first proposed budget for the EPA prior to 30 September 2021.

Focus on development of clean energy infrastructure

President Biden announced a new set of Paris Agreement nationally determined contributions (NDCs) for the United States at the Leaders’ Summit on Climate Change, including the achievement of a carbon pollution free power sector by 2035 and net-zero by 2050. Immediate action has been taken by President Biden towards the development of clean energy infrastructure, including:

• The issue of a directive to the EPA to develop new regulations around the monetisation of value of changes in levels of greenhouse gas emissions;
  
  
• Announcement of an economic package to boost investments in clean energy, including carbon pricing measures and the subsidisation of renewable energy;
  
  
• Articulation of a new policy position which has brought an end to international financing of fossil fuel based energy in America; and
  
  
• The issue of an Executive Order terminating the Keystone Pipeline Permit and placing a moratorium on oil and gas exploration on federal lands.

However, the traction these executive actions will make has been questioned by the American Bar Association in light of the clash between the policy position of the Biden Administration and the Supreme Court.

Any steps taken by the EPA on climate issues that occur “without the backing of new legislative action will undoubtedly be met with legal challenges… leaving its fate to the courts”.  

Indeed, the American Bar Association notes that there remains no Democratic majority in the Senate, meaning:  “The viability of any subsequent efforts to advance climate policy through Congress may be limited by the balance of power, which is likely to remain under split party control.” 

Conclusion

Overall, there has been a seismic shift in American climate change and environmental policy in the last six months which is likely to have significant implications for Australia.  These implications may not be immediate, however given the Net Zero commitments made by President Biden and the whole-of-government approach to climate change, the pressure on Australian legislators and policy makers is likely to grow. The outcomes of COP26 will no doubt amplify this pressure.