President-elect Joseph R. Biden faces a challenging road to inauguration day. But that road may be nothing compared to the to-do list waiting for him on January 21. The global pandemic and a struggling national economy are first-order priorities, but in addition to these emergent issues, energy and environmental policies were important topics for many voters during the election.[i]
Biden campaigned on a platform championing clean energy and environmental justice.[ii] Depending on the outcome of two senate runoff elections in Georgia, however, the president-elect may have to realize much of his administration’s climate and clean energy policies through executive action.[iii]
Many of his more ambitious priorities will need support from Congress, and if the Republican party maintains its majority in the senate, it could be difficult for Biden to pass these initiatives with bipartisan support. But there are a number of executive actions that will give some flexibility to the Biden administration’s ability to achieve its energy and environmental goals.
Throughout his campaign, President-elect Biden consistently pledged to re-join the Paris Climate Accord on “Day 1” in office.[iv] He reaffirmed this commitment on November 4, the day the Trump administration’s decision to withdraw from the Agreement took effect.[v]
The pledge is a signal to the international community that the Biden administration believes that coalition building can result in meaningful progress to combat climate change. In a report issued one year ago, scientists associated with the Universal Ecological Fund (FEU-US) warned that the commitments made under the Paris Agreement are “partially or totally insufficient” to keep global warming from rising 1.5°C above pre-industrial levels.[vi] Of the 184 pledges, the report found that 70 percent—including the pledge made by the United States when it first joined the Agreement—were deemed insufficient.[vii]
FEU-US posited that governments would have to institute policy changes that “double or triple” their current pledges to make meaningful progress.[viii] To that end, the president-elect has also expressed his willingness to convene a world summit on climate change[ix] and to “lead an effort to get every major country to ramp up the ambition of their domestic climate targets.”[x]
Progressive Domestic Policies
Closer to home, the Biden administration will focus its efforts on strengthening the energy and environmental regulations that the Trump administration walked back in the last four years.
During his term, President Trump repealed or weakened 125 environmental regulations aimed at protecting the nation’s air, water, and endangered species.[xi] President-elect Biden can use his own executive authority to reverse many of these changes and institute new, progressive reforms.
First, the Biden administration can place strict limits on methane emissions at oil and gas sites.[xii] In August, President Trump rolled back the Obama administration’s 2016 New Source Performance Standards, which control methane emissions from new and modified sources in the oil and gas industries.[xiii] President-elect Biden has pledged to set “aggressive” limits on these methane emissions.[xiv]
While appropriately regulating industry emissions is a key component of any energy and environmental platform, the Biden administration’s proposed policies incorporate broad structural reforms that go far beyond emissions standards.
With executive action, President-elect Biden can use the federal government procurement system to reach 100 percent clean energy and zero-emission vehicles within the federal government’s operations; ensure that new construction and installation projects prioritize efficiency and are prepared for any impacts of climate change; require all federal permitting to consider the impacts on greenhouse gas emissions; promote biodiversity and the preservation of endangered species; and protect national wildlife refuges and public lands.[xv]
Strategic enforcement through agency partnerships
The Biden administration can also leverage partnerships with key agencies like the Environmental Protection Agency (EPA), the Federal Regulatory Energy Commission (FERC), and the Securities and Exchange Commission (SEC) to give force to its environmental policies. FERC in particular can support a move to zero-carbon energy sources because it “operates under a totally different legal paradigm—economic regulation, rather than pollution control or natural resource management market principles,” and zero-carbon resources continue to decline in cost.[xvi]
President-elect Biden can also designate a new chairman of FERC, chosen from the existing commissioners, without senate approval.[xvii] The Biden administration’s environmental platform would also require public companies to disclose climate risks in their operations and supply chains and the SEC will be a crucial partner to help enforce these corporate disclosures.[xviii]
Despite potential gridlock in congress, each of these executive actions is a viable way for the Biden administration to gain ground on their energy and environmental goals from its first day in office.
[i] Pew Research Center, Important issues in the 2020 election, https://www.pewresearch.org/politics/2020/08/13/important-issues-in-the-2020-election/ (last visited Nov. 11, 2020).
[iii] See Umair Irfan, How Joe Biden plans to use executive powers to fight climate change, Vox (Nov. 9, 2020), https://www.vox.com/21549521/joe-biden-transition-climate-change-senate-runoff.
[iv] Biden Harris, 9 Key Elements of Joe Biden’s Plan for a Clean Energy Revolution, https://joebiden.com/9-key-elements-of-joe-bidens-plan-for-a-clean-energy-revolution/ (last visited Nov. 11, 2020).
[v] Joe Biden (@JoeBiden), Twitter (Nov. 4, 2020, 7:18 PM), https://twitter.com/JoeBiden/status/1324158992877154310.
[ix] Lisa Friedman, 9 Things the Biden Administration could do quickly on the environment, N.Y. Times (Nov. 10, 2020 4:18 PM), https://www.nytimes.com/2020/11/08/climate/biden-climate.html?mc_cid=aec23ef1ae&mc_eid=b76aab033a.
[x] Biden Harris, supra note 2.
[xi] Juliet Eilperin, Brady Dennis and John Muyskens, Trump rolled back more than 125 environmental safeguards. Here’s how., Washington Post (Oct. 30, 2020), https://www.washingtonpost.com/graphics/2020/climate-environment/trump-climate-environment-protections/.
[xii] Ari Natter, Executive orders would give Biden options to limit oil and gas production, World Oil (Oct. 22, 2020), https://www.worldoil.com/news/2020/10/22/executive-orders-would-give-biden-options-to-limit-oil-and-gas-production.
[xiii] Environmental Protection Agency, EPA Issues Final Policy and Technical Amendments to the New Source Performance Standards for the Oil and Natural Gas Industry, https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry/epa-issues-final-policy-and-technical (last visited Nov. 11, 2020).
[xiv] Biden Harris, supra note 2.
[xvi] See Gernot Wagner, What Biden Can Really Do on Climate, Even Without the Senate, Bloomberg Green (Nov. 6, 2020), https://www.bloomberg.com/news/articles/2020-11-06/what-biden-can-really-do-on-climate-even-without-the-senate?srnd=green&sref=pD2ECzY4&mc_cid=aec23ef1ae&mc_eid=b76aab033a.
[xvii] 42 U.S.C. § 7171(b)(1).
[xviii] Biden Harris, supra note 2; Wagner, supra note 16.