Executive, agency actions offer more viable pathway for Biden's climate plan

November 9, 2020

Facing a high likelihood of a divided Congress when he assumes office, U.S. President-elect Joe Biden is charting a course that will rely on aggressive regulatory actions, executive orders, and incremental legislation to curb global warming and address other energy and environmental issues.

Biden has secured the more than 270 electoral votes needed to defeat President Donald Trump, major media organizations projected on Nov. 7. But the U.S. Congress has strong odds of remaining under split party control following the Nov. 3 elections, dimming Democrats' hopes for enacting major climate change and energy legislation in the next two years even with an ally in the White House.

Executive branch offers opportunities

Republicans have a good chance of holding onto control of the U.S. Senate but whether they do will not be known until January, when Georgia holds runoffs for its two Senate seats. The Democrats are projected to maintain their majority in the U.S. House of Representatives.

If Congress stays divided, Democrats have weakened prospects of passing more sweeping measures in the next two years to curb climate-warming greenhouse gases, including bills to place a price on carbon dioxide emissions or to establish a national clean energy standard.

But Biden could still make progress on reducing the nation's emissions through federal agency and executive actions, continuing the more recent trend of governing through executive orders rather than congressional action, according to industry observers. In June, Biden pledged to sign a series of executive orders if elected to reinstate environmental regulations rolled back by the Trump administration.

"The way the Trump administration modified regulations that were under challenge when the Obama administration left office is an easy way to reorient the priorities of policy without necessarily taking substantive action on setting limits on greenhouse gases," said Christine Tezak, managing director of ClearView Energy Partners, during a recent webinar.

In a divided government, the "likelihood of comprehensive climate legislation is greatly diminished," but the administration could seek to address greenhouse gas emissions through the U.S. Environmental Protection Agency, said Cliff Rothenstein, government affairs adviser with K&L Gates.

Initially, the Biden administration may issue a regulatory freeze, giving the new political team time to review current and pending regulations, Rothenstein said. And he expects the EPA to "very aggressively start a robust enforcement initiative to move forward on enforcement."

"What I would expect is a much greater focus on a four-block stretch of Pennsylvania Avenue from the White House at 1600 Pennsylvania Avenue to 1200 Pennsylvania Avenue, which is where EPA is located," Rothenstein said. "I think you're going to see a lot of policies coming from that stretch of Pennsylvania Avenue."

Biden could also rescind some of Trump's executive orders and may issue his own pertaining to environmental justice, clean energy and the social cost of carbon, Rothenstein said.

Given Biden's focus on combatting climate change during the campaign, industry observers said the president-elect could also make headway on the international level, promoting U.S. leadership in the global effort to reduce emissions. Trump officially withdrew the nation from the Paris Agreement on climate change on Nov. 4, and Biden has committed to rejoining the accord on his first day in office.

"[Biden] will not only recommit the United States to the Paris Agreement on climate change — he will go much further than that," according to the president-elect's transition website. "He is working to lead an effort to get every major country to ramp up the ambition of their domestic climate targets."

Senate GOP Leader Mitch McConnell, R-Ky., and his fellow Senate Republicans over the past two years have beat back aggressive climate legislation from the Democrat-majority House. That trend is likely to continue even with Biden in the White House.

"Given the fact that Biden is probably not going to have a compliant Senate to work with, don't look for him getting policy done through a reconciliation bill or even an ambitious climate bill," said Eric Washburn, who served as legislative director for former Senate Majority Leader Tom Daschle and is a former Democratic staff director for the Senate Environment and Public Works Committee.

In a divided Congress, "we would expect things for clean and advanced energy to be relatively small compared to what they might be under... full [Democratic] control," Leah Rubin Shen, policy director for the Advanced Energy Economy, said during an Oct. 21 webinar. "There might be some appetite for movement on tax credits, but that's sort of the great white whale of federal policy."

Areas for compromise do exist, however. With Democrats in charge of the House and executive branch, a GOP-majority Senate may have a harder time resisting calls for climate action.

"The House is going to continue to pass aggressive things, like they did in the past two years, and put the pressure on the Senate... especially when there's someone in the White House who also wants to get stuff done," League of Conservation Voters President Gene Karpinski predicted.

Congress is expected to consider coronavirus relief and recovery legislation in 2021 that could offer targeted support for clean energy development, policy experts say. An infrastructure bill could be another vehicle for Biden's clean energy agenda.

"There will be an enormous amount of energy put toward passing stimulus/recovery legislation that will include clean energy and climate incentives, among other things," said Tracy Nagelbush Tolk, principal for governmental issues at Van Ness Feldman LLP. Potential energy provisions could include tax incentives for clean energy technologies and additional funding for the Low Income Home Energy Assistance Program to help families pay their utility bills, Tolk said.

Beyond economic relief bills, Tolk said energy and environmental measures will continue to move in smaller packages attached to other legislative initiatives, including regular defense spending and water resources appropriations bills.

Republicans and Democrats could also work together on clean energy research funding. Lawmakers from both parties have joined forces in recent years to boost appropriations for the U.S. Department of Energy's research programs. And in 2020, the GOP-controlled Senate Committee on Energy and Natural Resources introduced the sweeping American Energy Innovation Act, while House Democrats passed their own energy innovation bill in September.

Biden will also have to rely on the Senate to confirm his picks to head federal agencies. But if Republicans keep their Senate majority, they could try to slow down or block confirmation of Biden's nominees in an effort to thwart his climate agenda.

The Democratic president-elect "needs to appoint the Anthony Fauci of the Department of Energy and EPA," former EPA Administrator Gina McCarthy said during a recent post-election conference call, referencing the current director of the National Institute of Allergy and Infectious Diseases. "We just need somebody who follows the science, who understands the law."

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