This Customer Alert—Part 2 of an ongoing series—provides an overview of one of the EPA’s primary goals in its draft strategic plan: developing resilience and adapting to the impacts of climate change. Other alerts can be found in the series here.
On October 1, 2021, the US Environmental Protection Agency published a draft strategic plan for the 2022-2026 fiscal year. The EPA’s strategic plan sets out seven overarching goals with corresponding goals for achieving each goal. Under the first goal, entitled “Tackling the Climate Crisis,” the EPA emphasizes its goal to “accelerate resilience and adapt to the effects of climate change.”1 Two of the EPA’s important strategies to achieve this goal are “incorporating climate adaptation into EPA’s rule-making programs, policies, processes, and enforcement activities” and “Partnering with Tribes, States…Local Governments” [and] Environmental sanitation organizations. “2
The EPA’s focus on climate change adaptation and resilience is likely to increase the time and cost of permitting facilities, implementing remediation plans, and creating infrastructure to accommodate expected climate change impacts. The dual strategies outlined in the Strategic Plan for Partnership with States and Sanitation Organizations and Integration of Climate Adaptation into Rulemaking Activities and EPA Execution will focus on inspections, investigations, clean-up activities, and enforcement on facilities close to the sanitation communities. And in those regions that are expected to be most affected by climate change.
Climate change adaptation and resilienceة
The EPA describes its adaptation and resilience goal through the lens of the “significant risks” that climate change poses to “the EPA’s ability to fulfill its mission.”3 The draft strategic plan states that “[m]Frequent and extreme events related to severe weather and climate, as well as changes in average climatic conditions, are expected to continue to damage infrastructure, ecosystems and social systems that provide essential benefits to communities and the nation.”4 The EPA intends its Adaptation and Resilience strategies to help “prepare for and respond to climate-related impacts and disasters (for example, wildfires, extreme heat, drought, floods, sea-level rise, storm surge, and thawing permafrost) and ensure infrastructure investments increase resilience to climate change.” .5 The use of broad and open language in this regard leaves open the possibility that a wide range of environmental industries and regulations could be affected by the EPA’s strategic plan.
As with all phases of the Strategic Plan, the EPA emphasizes a “whole government approach” that seeks to coordinate with other federal and state agencies to achieve its goals.6 Similarly, the EPA repeatedly emphasizes its “special focus on promoting environmental justice.”7 By providing “targeted assistance” to increase resilience and enhance the adaptive capacity of sanitation communities (that is, communities that are “disproportionately affected”)[ed]”,” overburdened and unserved “).8
The EPA identifies five “priority actions” as part of its goal to accelerate resilience and adaptation to the impacts of climate change, with the goal of complementing these actions by September 30, 2026:
Integrate climate adaptation into EPA programs, policies, rule-making processes, and enforcement activities.
Consult and partner with tribes, states, territories, local governments, sanitation organizations, community groups, businesses, and other federal agencies to enhance resilience and increase the nation’s resilience, with a particular focus on advancing environmental justice.
Implement measures to protect the agency’s workforce, facilities, critical infrastructure, supply chains, and agency procurement processes from the risks posed by climate change.
Measuring and evaluating performance.
Identify and address the needs of climate adaptation science.9
To achieve its five priority actions by September 30, 2026, the EPA defines three categories of actions:
Integrating climate adaptation into EPA programs, policies, and operations: “The EPA will implement 19 Climate Adaptation Implementation Plans developed by EPA programs and regions to align with and advance the Five Priority Actions.” Building on “progress to date,” regional programs and plans will define “actions that integrate climate adaptation into remediation, permitting, infrastructure investments, enforcement and compliance assistance, grants, loans, technical assistance, and operations.”10
Increasing the resilience of tribes, states and societies: “The Environmental Protection Agency will ensure that its grants, loans, and technical assistance are climate change sensitive to the extent possible and help empower communities across the country and tribes to anticipate, prepare for, adapt, and recover from the impacts of climate change.” The Environmental Protection Agency expresses concern that the effects of climate change will disproportionately affect “low-income communities, children, the elderly, communities of color, tribal communities, and indigenous peoples.” Thus, it plans to “actively engage with organizations representing overburdened and disadvantaged communities, such as the National Environmental Justice Advisory Council and the Local Government Advisory Committee, with the goal of achieving a more equitable, just and climate-resilient future.” EPA provides an example of working with the Federal Emergency Management Agency (“FEMA”) to focus on disaster mitigation and recovery planning, particularly for sanitation communities.11
Literacy and Climate Adaptation Science: “The EPA will work to increase climate literacy for EPA staff and tribal, state, local, and community partners,” including increasing understanding of “expected climate-related impacts and how to use climate adaptation tools to integrate climate adaptation into decision-making.” This includes expanding “existing EPA Climate Adaptation Training Modules to prioritize two primary goals: (1) raise awareness of the importance of climate adaptation and encourage all EPA staff and partners to consider the changing climate in the normal business context; and (2) introduce Specific methods and tools for integrating climate adaptation into decision-making processes.” The EPA will also support an “agency-wide approach to identifying and updating priority climate adaptation research needs,” including “carrying out climate research in its laboratories and centers, and supporting research through its grant program, conduct policy-relevant evaluations, communicate research and evaluation findings, and provide innovative and sustainable solutions.” Finally, the EPA will create a “central repository of climate adaptation information and tools,” including collaboration with other federal agencies.12
One notable element of the Strategic Plan’s focus on climate change adaptation and resilience is the need to further develop the science of climate change in support of the objectives of the EPA’s overall Strategic Plan. Although the Strategic Plan notes the utilization of existing training and science on climate adaptation, the Strategic Plan emphasizes the need for additional research support to inform EPA’s decision-making processes.
As of writing this customer alert, there are 119 public comments13 The Strategic Plan was published on the Federal Register website.14 Most comments endorse the Strategic Plan and emphasize the need to “follow the science” and develop rigorous climate change adaptation plans that focus specifically on sanitation communities. Some comments, such as that made by the Johns Hopkins Center for a Liveable Future and Land Justice, have focused on industrial farming practices as having a significant impact on climate change and require an independent assessment of agriculture’s impact on climate change.15 Others, such as the Blue Ridge Environmental Defense League, claim that energy sources from natural gas, nuclear, and biomass are “false promises and blind alleys” that the EPA should avoid in achieving its adaptation and resilience goal.16
However, not all comments of environmental organizations are in favor. For example, the Center for Biological Diversity criticizes the Strategic Plan for not properly incorporating the Endangered Species Act into the plan.17 Similarly, the Environmental Defense Fund is asking the EPA to end vehicle emissions standards by 2023 and oil and gas standards by the end of 2022, rather than 2026.18
Additional entities providing comments, such as the Petroleum Coalition of Oklahoma, are requesting further clarification and reminding the EPA that “[science] It should not be used to circumvent the law. They urge that “the EPA should take a commonsense approach to setting the rules for climate change.” The Petroleum Coalition also stresses that the EPA should take into account the benefits of oil and gas production in its cost-benefit analysis and that the oil and gas industry has played a major role in limiting of greenhouse gas emissions in the U.S. They also require the Environmental Protection Agency to support and facilitate innovation and use of new technologies to reduce greenhouse gas emissions, and require the EPA to avoid overlapping and duplicating regulatory requirements.19
Comments submitted by the Texas Commission on Environmental Quality (“TCEQ”) ask the EPA to clarify whether the EPA will provide additional funding to states “to perform new actions that may result from this plan.” The TCEQ also requires that the EPA define more key terms used in the strategic plan, for example: “How equity will be determined, measured, weighed, or taken into account when making authorizing or enforcement decisions.” 20 In addition, the National Federation of Independent Business (“NFIB”) requires the EPA to include a provision that includes the importance of small businesses to the U.S. economy and takes into account “the differences between the needs of small businesses and those of large corporations.”21
The EPA expects to finalize its strategic plan and submit it to Congress in February 2022.
The EPA’s Strategic Plan is a comprehensive and ambitious policy statement that outlines the EPA’s proposed plan to integrate climate change adaptation and resilience concerns into every aspect of EPA’s activities. Although the details are ambiguous, the EPA explains that a major legislative, policy and regulatory push — as well as increased efforts in permitting and enforcement — can be expected in the near future as the EPA strives to implement its strategic plan. The EPA takes an open approach to climate change impacts within its regulatory authority and plans to fund research into additional climate change issues, particularly in sanitation communities, to guide decision-making and resource allocation.
Clients should pay particular attention to emerging EPA regulations and policies, permitting decisions and enforcement actions in this area, and should begin to think proactively about how to respond to the dual policies of climate change adaptation and environmental justice in their dealings with both state and federal. agencies. These key strategic objectives of the Biden administration’s “whole of government” administration are likely to increase compliance costs and strengthen the agency’s investigation and enforcement activities, particularly in the sanitation communities and areas expected to be affected by climate change impacts such as sea-level rise, floods, wildfires and more intense storms.
1Draft EPA Strategic Plan p. 14
2Identification card. in p. 15
3Identification card. in p. 14
4Identification card. in p. 16
5Identification card. in p. 14
8Identification card. in p. 7
9Identification card. in p. 15
12Identification card. in p. 16