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Inside Washington

President-elect Biden’s EPA could bring major ag changes

Justin Sullivan/Getty Images Trump’s Proposed Budget Cuts EPA Funding
It's important to watch direction of new EPA administrator on water rule, ethanol and pesticide registrations.

President-elect Joe Biden’s transition team at the Environmental Protection Agency should cause the agriculture industry concern. As Biden begins to fill his Cabinet, the crucial EPA administrator will helm actions that directly affect those in agriculture.

Randy Russell, president of the Russell Group and agricultural lobbyist, said Biden’s EPA transition team seems to be much more progressive and driven by activists (read more great insight from Gary Baise on the EPA transition team), whereas the U.S. Department of Agriculture’s transition team presents fewer red flags. “I think we’re going to end up with an EPA a little more problematic for the ag community going forward,” Russell said.

Potential names being tossed around for EPA administrator include Mary Nichols, chair of the California Air Resources Board who previously served as a senior staff attorney for the Natural Resources Defense Council and spent a 45-year career as an environmental lawyer. Washington Gov. Jay Inslee is also on the short list for EPA administrator. Russell said Inslee has been almost “singularly focused” on climate and could bring that same agenda to EPA. (Here’s a more comprehensive list of who might head up EPA.)

WOTUS rule

One cornerstone action taken by President Donald Trump’s EPA included withdrawing the Obama Administration’s "waters of the U.S." (WOTUS) rule, which quickly landed in courts around the country. The Trump rewrite – known as the Navigable Waters Rule – took nearly all four years to accomplish, with the final rule completed in late April and going into effect on June 22.

Russell said he hopes the incoming Biden Administration will “let sleeping dogs lie” and not try to re-propose something that drew so much fire from agricultural groups in 2015. “If they open up that can of worms, it could a big mistake on their part,” Russell said, adding that it could irritate the agricultural community “at a time when they don’t need to pick that fight.”

Larry Liebesman, who spent 11 years as an environmental litigator at the U.S. Department of Justice and now at the Dawson & Associates law firm, said recently there are some different options on the table regarding how the Biden Administration could approach the ongoing WOTUS litigation.

“It’s hard to predict how a new WOTUS rule would be crafted in order to be sustained in an eventual Supreme Court review. If a Biden Administration desires to create a new rule, it would have to analyze carefully whether a new WOTUS rule identical to the Obama Administration’s rule and based largely on Justice [Anthony] Kennedy’s 'significant nexus' opinion would survive in a court that is likely to still have a 5-4 conservative majority,” Liebesman said, adding that since Justice John Roberts sided with Justice Antonin Scalia in the case Rapanos vs. United States, and given his comments in cases since then, "going back to the Obama rule may not be successful in the Supreme Court.”

Ethanol

In a recent letter to the editor by Michael Spencer published by The Kansas City Star, the Kansas farmer said while farmers across the country faithfully stood by Trump, they remain deeply skeptical and uneasy about the intentions of his EPA in the wake of the election and handling of the Renewable Fuel Standard (RFS). 

“There are a multitude of ways that [EPA Administrator Andrew] Wheeler could still damage the standard and the farmers who depend on its enforcement. First, the EPA is still considering giving waivers to 35 oil refineries that would let them ignore their obligations to blend biofuels, even after a federal appeals court found in January that those exemptions are illegal, and even though the EPA decided not to appeal the decision, it has so far refused to implement the court’s order,” Spencer wrote. “If Wheeler were to grant any of these waivers in the waning moments of 2020, it would have disastrous effects on the farmers who strongly supported Trump. A cut to biofuel requirements would mean more lost demand and lower prices for corn and soybeans.”

EPA typically proposes blending requirements by July and finalizes its renewable volume obligations (RVOs) before the end of November.

Mary Kay Thatcher, senior lead for federal government relations at Syngenta, said if President Trump wants to do something nice on his way out of office for the farmers who supported him, it would be releasing the RVOs for next year.

However, Russell said he expects that action to get kicked to the next administration. This could offer a first look at how Biden lives up to his promises of supporting the RFS.

When 2022 hits under the current RFS, unless there is new updating legislation, the 15 billion gal. obligation goes away, and the mandate is left to the discretion of EPA.

Midwest Republican senators have championed ethanol in recent years when EPA acted out of line with congressional intent. With the majority of Midwest states represented by Republican senators -- notably Iowa, Nebraska and Missouri -- the pressing voice may now need to shift to Democrat senators in Minnesota and Illinois to carry that torch to the Biden Administration if its approach to the RFS veers off course.

Pesticide reviews

Thatcher doesn’t expect Biden to eliminate the recently approved dicamba registration, and the focus of environmental groups likely will be court action rather than regulatory actions at the Executive Branch.

However, the Center for Food Safety (CFS) has already called on the Biden Administration to take immediate action in its first 180 days to halt or revoke EPA’s re-approvals of glyphosate, dicamba, sulfloxaflor, atrazine and isoxaflutole. It also called for the new administration to reinstate and finalize the prohibition of chlorpyrifos and prohibit neonicotinoid pesticides.

Many food and agricultural activities that would otherwise be subject to environmental review under the National Environmental Protection Act (NEPA) are now exempt or only subject to lessened scrutiny under a Trump Administration rule. CFS is asking the new EPA to restore previous NEPA protections. The Trump Administration changed how the Endangered Species Act is applied, and CFS want to restore several of those rules.

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