December 5, 2021

Volume XI, Number 339

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Biden Administration Announces Sweeping Slate of Administrative Actions

On January 20, 2021, the Biden Administration began delivering on its commitment to issue a wide-ranging and forceful suite of actions that will impact virtually all sectors of the economy.  In the first three days alone, the Administration issued over 25 executive orders and actions, with more anticipated in the coming days and weeks.  In particular, actions were focused on laws and regulations that will impact environmental and energy policies, health care matters related to the COVID-19 pandemic, and the utilization of natural resources. 

Taken together, the actions issued on Day One of the Biden Administration are remarkable for their depth and breadth, requiring expedited but detailed analysis and absorption by interested parties.  Perhaps even more remarkable is that such a large and all-encompassing set of detailed actions were fully developed and ready to go on the first day of a new Administration.

The Van Ness Feldman team is reviewing each action and triaging the growing lists of Executive Orders, Secretarial instructions, and guidance to understand the details, timing, and impacts of this comprehensive body of work.  Our team is assessing the many facets of the presidential actions, in detail, by relevant sector.  For purposes of this initial alert, we draw your attention to three aspects of the actions that set them apart from actions taken on the first day of previous Administrations: 

Far Reaching Energy, Environmental, and Natural Resources Executive Orders

There are three new Executive Orders in these subject areas, largely rescinding actions taken by Executive Order in the prior Administration.  In addition, two specific orders to review existing regulations for rescission or change were issued. The scope of these actions is noteworthy, as is the broad suite of policies impacted by these actions.  From Sage Grouse management to FAST Act coverage to oil- and gas-related federal authorizations, and no fewer than 36 actions on the environment -  the suite of actions seeks to address nearly every aspect of Trump Administration policy in the areas of federal environmental, energy, and natural resource law.

 Policy Agenda Evident on Day One

Moving at a speed and breadth not seen in recent times, the Biden Administration launched key components of their agenda without waiting for confirmation of Executive-level personnel. The Administration is expected to rescind many actions of the prior Administration affecting environmental and climate matters.  In cases requiring action beyond the authorization of Executive Orders, the new Administration is reviewing whether final action is dependent on issuance of regulations or actions by Congress. It is clear now that there will be no transition "ramp up" in which formal actions only are taken after all policy personnel are in place. Direction has already been given by the White House in many of these policy areas. 

 A Three-Tiered Approach to the Review Process

Mindful of the limits on federal policy changes that can be accomplished by Executive Order, as well as recent judicial review of abrupt changes in existing regulation, the Administration appears to have adopted something of a three-tiered approach to its incoming agenda:  (1) issue Executive Orders with immediate effect wherever the intended result can be accomplished without delay through executive action; (2) require review of existing regulations when the action requires action in compliance with Rulemaking requirements under the Administrative Procedures Act; or (3) prepare legislative proposals where Congressional action is required.

Due to the importance and the clear urgency of these actions, we recommend for our clients and other interested parties an analysis of the Administration’s actions listed below.  Of course, some actions—primarily Executive Orders—are completed, and no input will be taken on changes, while other actions, including regulatory reviews or legislative proposals, provide some limited time for public input and the consideration of potential changes.  In all cases, though, we note the urgency which has been demonstrated by the Administration.  That urgency should be matched by all interested parties, as these important federal policies will be established early in this Administration.

Following is an index of actions taken to date by the Administration and a proposed schedule for further action in the coming days:

Regulatory Review

Date

Executive Order

Brief Summary

1/20/21

Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis

 

Directs all executive departments and agencies to immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with the goals of:

  • improving public health and protecting our environment;
  • ensuring access to clean air and water;
  • limiting exposure to dangerous chemicals and pesticides;
  • holding polluters accountable, including those who disproportionately harm communities of color and low-income communities;
  • reducing greenhouse gas emissions;
  • bolstering resilience to the impacts of climate change;
  • restoring and expanding our national treasures and monuments; and
  • prioritizing both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals

Sec. 2.  Immediate Review of Agency Actions Taken Between January 20, 2017, and January 20, 2021.  (a)  The heads of all agencies shall immediately review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (agency actions) promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are or may be inconsistent with, or present obstacles to, the policy set forth in section 1 of this order.  For any such actions identified by the agencies, the heads of agencies shall, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding the agency actions. 

Within 30 days of the date of this order, heads of agencies shall submit to the Director of the Office of Management and Budget (OMB) a preliminary list of any actions being considered pursuant to section (2)(a) of this order that would be completed by December 31, 2021, and that would be subject to OMB review.  Within 90 days of the date of this order, heads of agencies shall submit to the Director of OMB an updated list of any actions being considered pursuant to section (2)(a) of this order that would be completed by December 31, 2025, and that would be subject to OMB review.  At the time of submission to the Director of OMB, heads of agencies shall also send each list to the National Climate Advisor.  In addition, and at the same time, heads of agencies shall send to the National Climate Advisor a list of additional actions being considered pursuant to section (2)(a) of this order that would not be subject to OMB review.

In addition, for the agency actions in the 4 categories set forth in subsections (i) through (iv) of this section, the head of the relevant agency, as appropriate and consistent with applicable law, shall consider publishing for notice and comment a proposed rule suspending, revising, or rescinding the agency action within the time frame specified.

(i)    Reducing Methane Emissions in the Oil and Gas Sector:  “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration,” 85 Fed. Reg. 57398 (September 15, 2020), by September 2021.

(ii)   Establishing Ambitious, Job-Creating Fuel Economy Standards:  “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program,” 84 Fed. Reg. 51310 (September 27, 2019), by April 2021; and “The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks,” 85 Fed. Reg. 24174 (April 30, 2020), by July 2021.  In considering whether to propose suspending, revising, or rescinding the latter rule, the agency should consider the views of representatives from labor unions, States, and industry.

(iii)  Job-Creating Appliance- and Building-Efficiency Standards:  “Energy Conservation Program for Appliance Standards: Procedures for Use in New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Commercial/Industrial Equipment,” 85 Fed. Reg. 8626 (February 14, 2020), with major revisions proposed by March 2021 and any remaining revisions proposed by June 2021; “Energy Conservation Program for Appliance Standards: Procedures for Evaluating Statutory Factors for Use in New or Revised Energy Conservation Standards,” 85 Fed. Reg. 50937 (August 19, 2020), with major revisions proposed by March 2021 and any remaining revisions proposed by June 2021; “Final Determination Regarding Energy Efficiency Improvements in the 2018 International Energy Conservation Code (IECC),” 84 Fed. Reg. 67435 (December 10, 2019), by May 2021; “Final Determination Regarding Energy Efficiency Improvements in ANSI/ASHRAE/IES Standard 90.1-2016: Energy Standard for Buildings, Except Low-Rise Residential Buildings,” 83 Fed. Reg. 8463 (February 27, 2018), by May 2021.

(iv)   Protecting Our Air from Harmful Pollution:  “National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Residual Risk and Technology Review,” 85 Fed. Reg. 31286 (May 22, 2020), by August 2021; “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” 85 Fed. Reg. 84130 (December 23, 2020), as soon as possible; “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information,” 86 Fed. Reg. 469 (January 6, 2021), as soon as possible.

Sec. 3.  Restoring National Monuments.  (a)  The Secretary of the Interior, as appropriate and consistent with applicable law, including the Antiquities Act, 54 U.S.C. 320301 et seq., shall, in consultation with the Attorney General, the Secretaries of Agriculture and Commerce, the Chair of the Council on Environmental Quality, and Tribal governments, conduct a review of the monument boundaries and conditions that were established by Proclamation 9681 of December 4, 2017 (Modifying the Bears Ears National Monument); Proclamation 9682 of December 4, 2017 (Modifying the Grand Staircase-Escalante National Monument); and Proclamation 10049 of June 5, 2020 (Modifying the Northeast Canyons and Seamounts Marine National Monument), to determine whether restoration of the monument boundaries and conditions that existed as of January 20, 2017, would be appropriate.

(b)  Within 60 days of the date of this order, the Secretary of the Interior shall submit a report to the President summarizing the findings of the review conducted pursuant to subsection (a), which shall include recommendations for such Presidential actions or other actions consistent with law as the Secretary may consider appropriate to carry out the policy set forth in section 1 of this order.

Sec. 4.  Arctic Refuge.  (a)  In light of the alleged legal deficiencies underlying the program, including the inadequacy of the environmental review required by the National Environmental Policy Act, the Secretary of the Interior shall, as appropriate and consistent with applicable law, place a temporary moratorium on all activities of the Federal Government relating to the implementation of the Coastal Plain Oil and Gas Leasing Program, as established by the Record of Decision signed August 17, 2020, in the Arctic National Wildlife Refuge.  The Secretary shall review the program and, as appropriate and consistent with applicable law, conduct a new, comprehensive analysis of the potential environmental impacts of the oil and gas program.

Sec. 5.  Accounting for the Benefits of Reducing Climate Pollution.  (a)  It is essential that agencies capture the full costs of greenhouse gas emissions as accurately as possible, including by taking global damages into account.  Doing so facilitates sound decision-making, recognizes the breadth of climate impacts, and supports the international leadership of the United States on climate issues.  The “social cost of carbon” (SCC), “social cost of nitrous oxide” (SCN), and “social cost of methane” (SCM) are estimates of the monetized damages associated with incremental increases in greenhouse gas emissions.  They are intended to include changes in net agricultural productivity, human health, property damage from increased flood risk, and the value of ecosystem services.  An accurate social cost is essential for agencies to accurately determine the social benefits of reducing greenhouse gas emissions when conducting cost-benefit analyses of regulatory and other actions.

(b)  There is hereby established an Interagency Working Group on the Social Cost of Greenhouse Gases (the “Working Group”).  The Chair of the Council of Economic Advisers, Director of OMB, and Director of the Office of Science and Technology Policy shall serve as Co-Chairs of the Working Group.

Sec. 6.  Revoking the March 2019 Permit for the Keystone XL Pipeline.  (a)  On March 29, 2019, the President granted to TransCanada Keystone Pipeline, L.P. a Presidential permit (the “Permit”) to construct, connect, operate, and maintain pipeline facilities at the international border of the United States and Canada (the “Keystone XL pipeline”), subject to express conditions and potential revocation in the President’s sole discretion.  The Permit is hereby revoked in accordance with Article 1(1) of the Permit.

Sec. 7.  Other Revocations.  (a)  Executive Order 13766 of January 24, 2017 (Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects), Executive Order 13778 of February 28, 2017 (Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule), Executive Order 13783 of March 28, 2017 (Promoting Energy Independence and Economic Growth), Executive Order 13792 of April 26, 2017 (Review of Designations Under the Antiquities Act), Executive Order 13795 of April 28, 2017 (Implementing an America-First Offshore Energy Strategy), Executive Order 13868 of April 10, 2019 (Promoting Energy Infrastructure and Economic Growth), and Executive Order 13927 of June 4, 2020 (Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities), are hereby revoked.  Executive Order 13834 of May 17, 2018 (Efficient Federal Operations), is hereby revoked except for sections 6, 7, and 11.

(b)  Executive Order 13807 of August 15, 2017 (Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects), is hereby revoked.  The Director of OMB and the Chair of the Council on Environmental Quality shall jointly consider whether to recommend that a replacement order be issued.

(c)  Executive Order 13920 of May 1, 2020 (Securing the United States Bulk-Power System), is hereby suspended for 90 days.  The Secretary of Energy and the Director of OMB shall jointly consider whether to recommend that a replacement order be issued.

(d)  The Presidential Memorandum of April 12, 2018 (Promoting Domestic Manufacturing and Job Creation Policies and Procedures Relating to Implementation of Air Quality Standards), the Presidential Memorandum of October 19, 2018 (Promoting the Reliable Supply and Delivery of Water in the West), and the Presidential Memorandum of February 19, 2020 (Developing and Delivering More Water Supplies in California), are hereby revoked.

(e)  The Council on Environmental Quality shall rescind its draft guidance entitled, “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions,” 84 Fed. Reg. 30097 (June 26, 2019).  The Council, as appropriate and consistent with applicable law, shall review, revise, and update its final guidance entitled, “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews,” 81 Fed. Reg. 51866 (August 5, 2016).

 

1/20/21

Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation

 

Revokes the following policies and directives:

  • Executive Order 13771 of January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs),
  • Executive Order 13777 of February 24, 2017 (Enforcing the Regulatory Reform Agenda),
  • Executive Order 13875 of June 14, 2019 (Evaluating and Improving the Utility of Federal Advisory Committees),
  • Executive Order 13891 of October 9, 2019 (Promoting the Rule of Law Through Improved Agency Guidance Documents),
  • Executive Order 13892 of October 9, 2019 (Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication), and
  • Executive Order 13893 of October 10, 2019 (Increasing Government Accountability for Administrative Actions by Reinvigorating Administrative PAYGO).

 

1/20/21

Regulatory Freeze Pending Review

1. Subject to any exceptions the Director of the Office of Management and Budget (the “OMB Director”) allows for emergency situations or other urgent circumstances relating to health, safety, environmental, financial, or national security matters, or otherwise, propose or issue no rule in any manner — including by sending a rule to the Office of the Federal Register (the “OFR”) — until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule.  The department or agency head may delegate this power of review and approval to any other person so appointed or designated by the President, consistent with applicable law.

2. With respect to rules that have been sent to the OFR but not published in the Federal Register, immediately withdraw them from the OFR for review and approval as described in paragraph 1, subject to the exceptions described in paragraph 1.  This withdrawal must be conducted consistent with OFR procedures.

3. With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum, consistent with applicable law and subject to the exceptions described in paragraph 1, for the purpose of reviewing any questions of fact, law, and policy the rules may raise.  For rules postponed in this manner, during the 60-day period, where appropriate and consistent with applicable law, consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules.  As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.  Following the 60-day delay in effective date:

a. for those rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken; and

b. for those rules that raise substantial questions of fact, law, or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director.

4. Exclude from the actions requested in paragraphs 1 through 3 any rules subject to statutory or judicial deadlines and identify such exclusions to the OMB Director as soon as possible.

5. Notify the OMB Director promptly of any rules that, in your view, should be excluded from the directives in paragraphs 1 through 3 because those rules affect critical health, safety, environmental, financial, or national security matters, or for some other reason.  The OMB Director will review any such notifications and determine whether such exclusion is appropriate under the circumstances.

 

Climate Change

Date

Executive Order

Brief Summary

1/20/21

Paris Climate Agreement

President Biden accepted the Paris Agreement (December 12, 2015) and every article and clause thereof on behalf of the United States of America.

COVID-19 and Health-Related Actions

Date

Executive Order

Brief Summary

1/21/21

Executive Order on Establishing the COVID-19 Pandemic Testing Board and Ensuring a Sustainable Public Health Workforce for COVID-19 and Other Biological Threats

 

Creates a Government-wide, unified approach to address COVID-19 that includes:

  • establishing a national COVID-19 testing and public health workforce strategy;
  • expanding the supply of tests;
  • bringing test manufacturing to the United States, where possible;
  • enhancing laboratory testing capacity;
  • expanding the public health workforce;
  • supporting screening testing for schools and priority populations; and
  • ensuring a clarity of messaging about the use of tests and insurance coverage.

 

 

1/21/21

Executive Order on Protecting Worker Health and Safety

Creates a plan to reduce the risk that workers may contract COVID-19 in the workplace, including:

  • issuing science-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing;
  • partnering with State and local governments to better protect public employees;
  • enforcing worker health and safety requirements;
  • and pushing for additional resources to help employers protect employees.

1/21/21

Executive Order on Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers

 

Creates a plan to  provide support to help create the conditions for safe, in-person learning as quickly as possible; ensure high-quality instruction and the delivery of essential services often received by students and young children at school, institutions of higher education, child care providers, and Head Start programs; mitigate learning loss caused by the pandemic; and address educational disparities and inequities that the pandemic has created and exacerbated. 

1/21/21

Executive Order on Ensuring an Equitable Pandemic Response and Recovery

Establishes the HHS COVID-19 Health Equity Task Force,to identify, prevent, and remedy differences in COVID-19 care and outcomes within communities of color and other underserved populations.

1/21/21

Executive Order on a Sustainable Public Health Supply Chain

Directs immediate actions to secure supplies necessary for responding to the pandemic, so that those supplies are available, and remain available, to the Federal Government and State, local, Tribal, and territorial authorities, as well as to America’s health care workers, health systems, and patients. 

Charges the Secretary of State, the Secretary of Defense, the Secretary of Health and Human Services, the Secretary of Homeland Security, and the heads of appropriate executive departments and agencies, in coordination with the COVID-19 Response Coordinator, to conduct an inventory of response supplies and identify emergency needs.

1/21/21

Memorandum to Extend Federal Support to Governors’ Use of the National Guard to Respond to COVID-19 and to Increase Reimbursement and Other Assistance Provided to States

Requires the Secretary of Defense to work with all State and territorial governors to order National Guard forces to perform duty to fulfill mission assignments, on a fully reimbursable basis, that the Federal Emergency Management Agency (FEMA) issues to the Department of Defense for the purpose of supporting State, local, Tribal, and territorial emergency assistance efforts under the Stafford Act.  FEMA shall fund 100 percent of the cost of activities associated with all mission assignments for the use of the National Guard.

1/21/21

Executive Order on Ensuring a Data-Driven Response to COVID-19 and Future High-Consequence Public Health Threats

 

Requires the heads of all federal departments and agencies to facilitate the gathering, sharing, and publication of COVID-19-related data, in coordination with the COVID-19 Response Coordinator, to the extent permitted by law, and with appropriate protections for confidentiality, privacy, law enforcement, and national security.  These efforts shall assist Federal, State, local, Tribal, and territorial authorities in developing and implementing policies to facilitate informed community decision-making, to further public understanding of the pandemic and the response, and to deter the spread of misinformation and disinformation.

1/21/21

 

Executive Order on Improving and Expanding Access to Care and Treatments for COVID-19

 

Directs HHS and NIH to accelerate the development of novel therapies to treat COVID-19, improve capacity of the healthcare system to deal with COVID-19, and improve access to quality and affordable healthcare.

1/21/21

Executive Order on Promoting COVID-19 Safety in Domestic and International Travel

Tasks the Secretary of Labor, the Secretary of Health and Human Services (HHS), the Secretary of Transportation (including through the Administrator of the Federal Aviation Administration (FAA)), the Secretary of Homeland Security (including through the Administrator of the Transportation Security Administration (TSA) and the Commandant of the United States Coast Guard), and the heads of any other executive departments and agencies to require masks to be worn in compliance with CDC guidelines in or on:

  • airports;
  • commercial aircraft;
  • trains;
  • public maritime vessels, including ferries;
  • intercity bus services; and
  • all forms of public transportation as defined in section 5302 of title 49, United States Code.

1/20/21

Executive Order on Organizing and Mobilizing the United States Government to Provide a Unified and Effective Response to Combat COVID-19 and to Provide United States Leadership on Global Health and Security

 

Creates the position of Coordinator of the COVID-19 Response and Counselor to the President, who will report directly to the President; advise and assist the President and executive departments and agencies (agencies) in responding to the COVID-19 pandemic; coordinate all elements of the COVID-19 response; and perform such duties as the President may otherwise direct.

The heads of agencies shall, as soon as practicable, bring any procedural, departmental, legal, or funding obstacle to the COVID-19 response to the attention of the COVID-19 Response Coordinator. 

1/20/21

Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing

 

To protect the Federal workforce and individuals interacting with the Federal workforce, and to ensure the continuity of Government services and activities, on-duty or on-site Federal employees, on-site Federal contractors, and other individuals in Federal buildings and on Federal lands should all wear masks, maintain physical distance, and adhere to other public health measures, as provided in CDC guidelines.

The Secretary of Health and Human Services (HHS), including through the Director of CDC, shall engage, as appropriate, with State, local, Tribal, and territorial officials, as well as business, union, academic, and other community leaders, regarding mask-wearing and other public health measures, with the goal of maximizing public compliance with, and addressing any obstacles to, mask-wearing and other public health best practices identified by CDC.

The COVID-19 Response Coordinator, in coordination with the Secretary of HHS, the Secretary of Homeland Security, and the heads of other relevant agencies, shall promptly identify and inform agencies of options to incentivize, support, and encourage widespread mask-wearing consistent with CDC guidelines and applicable law.

 

Immigration

Date

Executive Order (Link Included)

Brief Summary

1/20/21

Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)

Requires  The Secretary of Homeland Security, in consultation with the Attorney General, to take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA, which deferred the removal of certain undocumented immigrants who were brought to the United States as children, have obeyed the law, and stayed in school or enlisted in the military.  DACA and associated regulations permit eligible individuals who pass a background check to request temporary relief from removal and to apply for temporary work permits.

 

1/20/21

Reinstating Deferred Enforced Departure for Liberians

Defers through June 30, 2022, the removal of any Liberian national, or person without nationality who last habitually resided in Liberia, who is present in the United States and who was under a grant of Deferred Enforcement Departure (DED) as of January 10, 2021.  Also extends employment authorization through June 30, 2022.

1/20/21

Proclamation on the Termination Of Emergency With Respect To The Southern Border Of The United States And Redirection Of Funds Diverted To Border Wall Construction 

Terminates the national emergency declared by Proclamation 9844, and continued on February 13, 2020 (85 Fed. Reg. 8715), and January 15, 2021, for construction of a wall at the southern border and pauses construction of the wall.

Requires the Secretary of Defense and the Secretary of Homeland Security, in coordination with the Secretary of the Treasury, the Attorney General, the Director of the Office of Management and Budget, and the heads of any other appropriate executive departments and agencies, and in consultation with the Assistant to the President for National Security Affairs, to develop a plan for the redirection of funds concerning the southern border wall, as appropriate and consistent with applicable law.

1/20/21

Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities

Revokes Executive Order 13768 of January 25, 2017 (Enhancing Public Safety in the Interior of the United States)

Directs the Secretary of State, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Management and Budget, the Director of the Office of Personnel Management, and the heads of any other relevant executive departments and agencies to review any agency actions developed pursuant to Executive Order 13768 and take action, including issuing revised guidance, as appropriate and consistent with applicable law, that advances the policy.

1/20/21

Proclamation on Ending Discriminatory Bans on Entry to The United States

Revokes Executive Order 13780 of March 6, 2017 (Protecting the Nation From Foreign Terrorist Entry Into the United States), Proclamation 9645 of September 24, 2017 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), Proclamation 9723 of April 10, 2018 (Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats), and Proclamation 9983 of January 31, 2020 (Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats). 

The Secretary of State shall direct all Embassies and Consulates, consistent with applicable law and visa processing procedures, including any related to coronavirus disease 2019 (COVID-19), to resume visa processing in a manner consistent with the revocation of the Executive Order and Proclamations specified in section 1 of this proclamation.

 

Ethics

Date

Executive Order

Brief Summary

1/20/21

 

Executive Order on Ethics Commitments by Executive Branch Personnel

 

Every appointee in every executive agency appointed on or after January 20, 2021, shall sign, and upon signing shall be contractually committed to, the following ethics pledge upon becoming an appointee, which includes reinforcing the lobbyist gift ban and revolving door bans for lobbying. 

1/20/21

 

Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation

 

Reinforces the Administration’s commitment to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.  The Administration will also focus on addressing overlapping forms of discrimination.

1/20/21

Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

States the Biden Administration’s policy that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.  Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole Government. 

The role of the White House Domestic Policy Council (DPC) is to coordinate the formulation and implementation of my Administration’s domestic policy objectives.  Consistent with this role, the DPC will coordinate efforts to embed equity principles, policies, and approaches across the Federal Government.  This will include efforts to remove systemic barriers to and provide equal access to opportunities and benefits, identify communities the Federal Government has underserved, and develop policies designed to advance equity for those communities.  The DPC-led interagency process will ensure that these efforts are made in coordination with the directors of the National Security Council and the National Economic Council. 

 

 

Census

Date

Executive Order

Brief Summary

1/20/21

Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census

Requires the Secretary of Commerce to report the tabulation of total population by State that reflects the whole number of persons whose usual residence was in each State, without regard to immigration status.  In addition, the Secretary shall use tabulations of population reflecting the whole number of persons whose usual residence was in each State as of the census date, without regard to immigration status, in reports provided to the Governor and officers or public bodies having responsibility for legislative apportionment or districting of each State.

The Secretary shall take all necessary steps, consistent with law, to ensure that the total population information presented to the President and to the States is accurate and complies with all applicable laws.

 

 

Student Loans

Date

Executive Order

Brief Summary

1/20/21

 

Pausing Federal Student Loan Payments

 

The Acting Secretary of Education will extend the pause on federal student loan payments and collections and keep the interest rate at 0%. 

Schedule of Executive Orders

(Unofficial)

Early Calendar of Themed Days

  • January 20- Inauguration and 4 Crises

  • January 21- COVID

  • January 22- Economic Relief

  • January 23-24- Weekend

  • January 25- Buy America

  • January 26- Equity

  • January 27- Climate

  • January 28- Health Care

  • January 29- Immigration

  • January 30-31- Weekend

  • February - Restoring America’s Place in the World

January 20: Inauguration + Four Crises

COVID

  1. Mask Mandate EO: Directs Agencies to require mask wearing and other public health practices for federal workers, in federal buildings, and on federal lands

  2. WH Structure EO: Establishes the White House structure to combat COVID-19

  3. Letter the WHO reversing the Trump Administration's decision to withdraw

Climate

  1. Climate Rollback EO (including Keystone XL Pipeline): Revokes or directs review of a series of Trump environmental actions; revokes Keystone XL permit

  2. Sign instrument to rejoin the Paris Agreement; to take effect 30 days later

Economy

  1. Extend Eviction and Foreclosure Moratoriums

  2. Extend Student Loan Forbearance

Equity

  1. Diversity, Equity, Inclusion and Accessibility in the Federal Workforce EO: Rescinds Trump EO banning diversity training and directs agencies to take action to advance diversity, equity, inclusion, and accessibility

  2. Repeal Muslim Ban rescinds Muslim Ban and directs State Department to restart visa processing

  3. Border Wall Proclamation: Terminates national emergency and halts obligation of funds for wall construction; directs a pause in ongoing constriction as soon as possible but no later than within 7 days

  4. Rescind Ban on Transgender Service: reserves restrictions on military service by transgender individuals

  5. Deferred Enforced Departure (DED) for Liberians: Reinstate DED and work authorization for Liberians (which expired January 10)

  6. Whole of Government Racial Equality EO: Directs whole-of-government review of the equitable destruction of USG programming and funding

  7. DACA: Directs DHS and DOJ to take all actions they deem appropriate to preserve and fortify DACA

  8. Census: Rescinds Trump EO and PM on excluding non-citizens from the census

  9. Rescind Trump EO on Immigration Enforcement, cleaning the way for Removal Moratorium (see below)

  10. Removal Moratorium: This DHS Secretary memo directs a review of immigration enforcement policies, interim priorities, and a 100-day pause on most removals

  11. Send immigration bill to Congress

Government Process

  1. Ethics EO: Establishes ethics standards for political appointees

  2. Regulatory Freeze Memo: Freeze Harmful Trump regulations that are not yet final

  3. Regulatory Process EO & PM: revokes harmful Trump EOs to provide flexibility to new Administration

January 21: COVID

  1. Supply Chain EO: Direct review of COVID supply chain and lays groundwork for invoking Defense Production Act

  2. National Guard and FEMA EO: reimburses states up to 100% for using national Guard to combat COVID-19

  3. Safe Travel EO: Directs agencies to implement public health measures on certain public modes of transportation (airports, aircraft, trains, public maritime vessels, intercity buses, and all forms of public transportation); directs agencies to act within 14 days to require that any person who seeks to board a flight to the U.S. from foreign country is required to provide a proof of a recent negative COVID-19 rest prior to departure

  4. Global Health PPD: Directs Agencies to strengthen efforts to combat COVID-19 globally and strengthen global pandemic preparedness

  5. Testing/Workforce EO: Creates Pandemic Test Board and directs HHS to support states’ efforts to deploy public health personnel to combat COVID-19

  6. Data EO: Strengthens pandemic related data collection and transparency

  7. Treatment EO: Directs actions to support research into novel COVID-19 treatment, secure an adequate supply, and promote equitable distribution

January 22: Economic Relief

  1. Economic Relief EO: Directs agency action on Medicaid; Pell grants; SNAP; and unemployment insurance

  2. Federal Workforce EO: Restores collective bargaining rights to federal employees; initiates action to roll back Trump administration’s Schedule F EO

January 25: Buy American

  1. Buy American EO: Directs agencies to strengthen requirements for procuring goods and services from sources that will support U.S. businesses and workers

January 26: Equity

  1. Policing Commission and Military Equipment Transfer EO: Creates policing commission and reinstates Obama-Biden policies governing the transfer of military-style equipment to local law enforcement

  2. Prisons EO: Direct DOJ to take steps to improve prison conditions and begin to eliminate the use of private prison

  3. Tribal Consultations PM: Directs agencies to strengthen engagement with tribal governments

  4. Fair Housing PM: Directs HUD to take steps to promote equitable housing politics

  5. Xenophobia Against AAPI EO: Disavows discrimination against the AAPI community, particularly in light of rhetoric around the COVID-19 pandemic

  6. DOJ Prosecutorial and Sentencing Actions: Actions TBD

  7. Voting Rights/Civil Rights EO (tent.): Actions TBD

January 27: Climate

  1. Omnibus Domestic and International Climate EO: initiates series of regulatory actions to combat climate change domestically and elevates climate change as a national security priority

  2. Scientific Integrity PM: Directs science and evidence-based decision-making in federal agencies

  3. PCAST Executive Order: re-establishes Presidential Council of Advisors on Science and Technology

  4. Announces the data for U.S.-hosted Climate Leaders’ Summit (April 22)

January 28: Health Care

  1. Rescind Mexico City Policy and Review Title X Domestic Gag Rule: Rescinds Mexico City Policy, disavows the “Geneva Declaration” (a multilateral anti-abortion declaration signed by the Trump Administration), and organizations that provide counseling about abortion

  2. EO on Medicaid and the Affordable Care Act: Takes steps to strengthen Medicaid and initiate an open enrollment period under the ACA

January 29: Immigration

  1. Regional Migration/Border Processing EO: Directs creation of strategies to address root causes of migration from Central America and expand opportunities for legal migration, while taking steps to restore the U.S. asylum system by rescinding numerous Trump Administration policies

  2. Refugee Policy EO (tent.): Establishes the principles that will guide the Administration’s implementation of the U.S. Refugee Admission Program (USRAP) and directs a series of actions to enhance USRAP’s capacity to fairly, efficiently, and security process refugee applications

  3. Family Reunification Task Force EO: Creates task force to reunify families separated by the Trump Administration’s Immigration policies

  4. Legal Immigration EO: Directs immediate review of the Public Charge Rule and other actions to remove barriers and restore trust in the legal immigration system, including improving the naturalization process

February: Restoring America’s Please in the World

  1. National Security Workforce & Talent EO: Directs agencies to recruit and retain employees to confront 21st century challenges, including through reskilling, professional development, and possible reserve corps to fill mission-critical gaps

  2. Forever Wars EO: initiates a review of CT operations and options to responsible reduce such operations; reinstates transparency measures on civilian casualties; reinstates the policy of closing GTMO; initiates a process to migrate substantial use of force operations to Title 10

  3. LGBTQI+ Rights Abroad PM: Bulbs on 2011 to strengthen U.S. diplomatic efforts to advance the human rights of LGBTQ + persons overseas

  4. “NSD-½?” (organizations of the NSC)

  5. Issue Interim Strategic Policy Guidance to Interagency

  6. NSC Meeting at the State Department

© 2021 Van Ness Feldman LLPNational Law Review, Volume XI, Number 23
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About this Author

Rick Agnew Energy Attorney Van Ness Feldman
Partner

Rick Agnew represents a variety of clients before Congress and federal agencies, particularly on matters relating to federal laws and permits governing energy projects, environmental matters, and the uses of natural resources.

As Chief Republican Counsel for the Committee on Interior and Insular Affairs (now the Committee on Natural Resources) of the U.S. House of Representatives, Rick served as committee counsel and staff supervisor in a wide array of federal issues, involving natural resources, Native Americans, and energy production and use....

202-298-1815
Shannon Angielski Environmental Lawyer VNF
Principal

Shannon Angielski’s practice focuses on developing and advocating for clean energy and carbon management policies on behalf of her clients, with a particular focus on carbon capture and sequestration (or “CCS”) policies. Shannon’s 20 years of experience includes working with electric power generators, equipment manufacturers, technology developers, and trade associations in the development, implementation and management of policy designs and advocacy strategies that have led to successful enactment of key legislation. Through her representations, Shannon engages federal...

202-298-1825
Shelley N. Fidler Energy & Environmental Policy Van Ness Feldman Washington, DC
Principal, Governmental Affairs, Energy and Environmental Policy

Shelley Fidler supports clients at the law firm of Van Ness Feldman in Washington, D.C. operating at the intersection of business and government in areas as diverse as foreign trade, business strategy, government relations, innovative governance, clean air, federal funding, regulatory assistance, thought leadership and visibility for companies at government’s highest levels, and in subject areas such as electricity, utility models, smart grid, hydropower, energy efficiency, clean diesel engines, climate change, carbon capture, clean energy and relationships with regulators and policy...

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Nancy Macan McNally Government Relations Lawyer VNF
Principal

Nancy Macan McNally is a leading member of the firm’s government relations team. Her practice focuses on developing and managing government policy programs for Fortune 500 companies, municipal entities, trade associations, and national coalitions in the healthcare, energy, environment, natural resources, and transportation sectors. Nancy’s more than 30 years of experience includes working with clients to design, implement, and manage legislative and public policy strategies, and advocating on behalf of firm clients before Congress and federal agencies. She has substantial knowledge and...

202-298-1892
James P. Bayot Van Ness Feldman Director, Governmental Issues
Director, Governmental Issues

As Director of Governmental Issues, James Bayot is responsible for monitoring, evaluating, and analyzing federal policy initiatives in Congress and the Executive Branch that affect the firm’s clients. James provides clients with a comprehensive view of major actions and issues emerging on Capitol Hill through the coverage of Congressional hearings and briefings in the healthcare, energy, natural resources, and environment sectors. Additionally, James represents the world’s largest healthcare services company on federal policy issues, providing Legislative and Executive Branch monitoring,...

202-298-1838
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