An Endangered Species

Delaware environmental policy and permitting

BY A. KIMBERLY HOFFMAN, ESQ.

STATE ENVIRONMENTAL POLICY will impact Delawareans’ quality of life and the state’s ability to attract and retain high quality jobs for years to come. Existing businesses as well as new ones rely on a rational environmental permitting process with a tolerable timetable; even residential development normally cannot proceed otherwise. At the same time, Delaware remains at risk for climate change, and citizens demand preservation initiatives plus greater attention to environmentally stressed communities.

While many wondered about how the incoming gubernatorial administration will staff environmental agencies, as well as the probable fate of revised environmental justice legislation during the 153rd Legislative Session in Dover, Delaware now must address unprecedented uncertainty in environmental permitting, rulemaking and policy generally now that a second Trump term looms in January. Many of the national environmental laws, federal staff, and policies that presently intertwine with Delaware’s regulations and permitting processes may not last until Valentine’s Day. If Representative Lee Zeldin, the incoming administration’s pick to head the federal Environmental Protection Agency, carries out the portion of Project 2025 relating to the environment, the agency’s budget and personnel will undergo drastic cuts, including many career officials with institutional knowledge; climate and environmental justice initiatives will be shut down.

Below I discuss what that means for Delaware.

Delaware’s environmental laws and permitting processes will become more vulnerable to challenges and takings claims. Additional Trump judicial appointments will accelerate activism from the bench against environmental laws and administrative enforcement powers, including finding state environmental laws unconstitutional or exceeding legislative powers. The conservative Supreme Court had already weakened federal wetlands regulation and undercut Congress’s ability to delegate decisions to environmental agencies though a series of adjudications culminating in the Chevron decision. The combined legislative, judicial, and executive federal rollback on regulating emissions, wetlands, hazardous waste, species protection, floodplain, and the like will leave substantial holes in Delaware’s entire regulatory scheme—at all levels of government—because both state agencies and local governments often regulate in the areas of air, water, hazardous waste, and species protection pursuant to federal delegation.

The regulated community should leave the champagne corked, though. Businesses have justly criticized the State’s environmental permitting process due to is length, complexity, unpredictability, and stringency, even when the approvals sought relate to a public good like brownfield cleanup or installing scrubbers to improve emissions. But it’s the devil we know.

However, should Delaware attempt to “California-ize” state environmental laws to fill federal gaps or withstand a federal legal assault, the state could end up with a lot of legal challenges and the need for substantial additional environmental personnel, without California’s budget to support that. California’s governor has already called a special legislative session to enact new environmental laws ahead of Trump taking office. Delaware could follow suit, as well as plan to join in some of the brewing Federal-state legal fights over environmental regulatory authority.

How might all this play out in real life? Take one topic, emissions. Delaware adopted some of California’s vehicle emissions standards in 2023. Presently 82% of new passenger vehicles sold in Delaware must be ZEVs by 2032, with the new rule being effective in 2027. Trump may repeal that program: “We want to end the Biden-Harris electrical vehicle mandate,” he said as recently as August 2024. Presumably the incoming Meyer administration will not want to give up Delaware’s approved emission standards. Disputes about Delaware’s authority to regulate emissions may lead to litigation, and hence regulatory uncertainty. Clashes seem equally inevitable over climate funding, species protection, water consumption and cleanliness, hazardous waste standards—the list is long.

We have one thing California does not: The Delaware Way. Delaware’s state and local governments, environmental activists, and business community should take this opportunity to collaborate on acceptable standards and reasonable permitting processes rather than assuming the courts will become a functional, de facto environmental regulatory agency, or that the federal-state regulatory tug-of-war will end in a rational way near-term. This is not a time for overreach by any stakeholders. Focus on what actually works to improve the environment rather than giving the performance of doing so: realistic implementation and partnership.

The recent enforcement initiative to keep trucks off residential roads near the Port of Wilmington shows compromise can work. The trucking industry does not want drivers on residential roads anyway. Redirecting trucks reduces emissions in neighborhoods without having to engage on emissions standards. That kind of common-sense approach stays well within state and local government regulatory authority without yet another complicated program or regulatory scheme the state arguably will not have the bandwidth to effectively administer, especially without federal support.

This you can bank on: no one will get their entire environmental agenda or economic development agenda one way or the other. And things will get interesting.

A. Kimberly Hoffman, Esq. is a partner at Morris James LLP.