Over the weekend, major news outlets announced that former Vice President Joe Biden will be the next president of the United States. Biden and his running mate, Vice President-elect Kamala Harris, pledged throughout the campaign to make dramatic changes from the policies pursued by President Donald Trump. And there is perhaps no issue on which Biden and Trump differ more sharply than climate change policy. A Biden-Harris administration will result in significant changes to the federal government's approach to climate change.
The urgency of addressing climate change was at the core of Biden's platform. As a result, we can expect to see climate change permeate all aspects of a Biden Administration's policies – from environmental policy, to public lands management, to tax and economic policy, to federal enforcement of environmental laws. On the campaign trail, Biden announced an ambitious climate change plan (“Climate Plan”) that aims to achieve carbon-pollution free electricity generation by 2035 and net-zero greenhouse gas (GHG) emissions economy-wide by 2050, backed by a pledge of $2 trillion in federal investment in his first term.1
Making progress toward these ambitious goals will require federal action on many fronts. However, the prospect of a divided Congress makes significant climate change legislation unlikely. The administration thus will likely be limited to actions that the executive branch can take alone – including rulemaking and executive orders – to implement its climate agenda. We expect the Biden administration to reassert the United States as an international leader on climate change policy, reverse the Trump administration's regulatory rollbacks, invest in sustainable infrastructure and clean energy, and require companies to make climate change disclosures.
Asserting International Leadership on Climate Change
As of the day following the election, November 4, 2020, the United States has formally left the Paris Agreement. Although President Trump announced his intent to terminate the US's involvement in the treaty shortly after taking office in 2017, under the United Nations rules, member nations were not permitted to formally withdraw until November 4, 2019, and then such withdrawal would become final one year later.
Biden has promised to rejoin the Paris Agreement on Day 1 of his presidency. Therefore, on Inauguration Day, January 21, 2021, he would notify the United Nations of the United States' intention to rejoin the agreement, and US would again become a signatory to the Paris Agreement 30 days after notification. In his Climate Plan, Biden commits to going further than merely rejoining the agreement. He has announced that he will “lead an effort to get every major country to ramp up the ambition of their domestic climate targets,” and will “lead the world to lock in enforceable international agreements to reduce emissions in global shipping and aviation.” And he would have an opportunity to begin working toward these goals in the lead-up to the next Conference of Parties (COP 26), which will take place in November 2021.
Reversing Regulatory Rollbacks
President Trump jettisoned or weakened nearly 100 environmental regulations enacted by previous administrations, including rules that sought to curb GHG emissions. For example, President Trump scrapped Obama's Clean Power Plan, which aimed to reduce GHG emissions from the power sector; dramatically lowered vehicle GHG emission and fuel economy standards; and weakened restrictions on methane emissions from the oil and gas sector issued by both the Environmental Protection Agency (EPA) and Bureau of Land Management.
We expect the Biden administration to immediately begin working to unwind these actions. Legal challenges to these rollbacks are ongoing. As such, the Department of Justice will likely change its position in many of these suits and ask the courts to remand the rules to the relevant agencies for revision. However, the Biden administration will generally need to initiate new notice and comment rulemakings to reverse the Trump administration's rollbacks. Rulemaking is a lengthy process and, once finalized, the replacement regulations will likely be challenged in court. The near certainty of legal challenges, coupled with the new 6-3 conservative majority on the US Supreme Court, may impede the administration's ability to issue aggressive regulations in the near term. Alternatively, if Democrats establish a majority in the Senate, Congress could utilize the Congressional Review Act to repeal rules issued within the last 60 legislative days.2 The Trump Administration's EPA methane rule and National Environmental Policy Act regulations would be among the likely targets for repeal.
Investing in Sustainable Infrastructure and Clean Energy
Biden has also announced that he intends to use “all the levers of the federal government” to build a more sustainable infrastructure. That includes:
- Encouraging carbon capture and other zero-carbon technologies through research investments and tax incentives;
- Using the federal government's procurement power – to the tune of $400 billion in his first term – to purchase electric vehicles, batteries, and other clean energy technologies;
- Investing in infrastructure, including electric vehicle charging and modernizing the electric grid;
- Reforming and extending tax incentives for wind, solar, and other clean energy technologies; and
- Prioritizing the development of renewable energy on public lands.
Biden has framed this aspect of his Climate Plan as a job creation engine, tying investments in sustainable infrastructure and clean energy to the post-pandemic economic recovery. While some elements, such as federal procurement and funding for research and development, can be accomplished through executive branch action, others – like the ambitious funding package – will require action by Congress.
Requiring Climate Change Disclosures
In his Climate Plan, Biden also committed to require publicly traded companies to disclose climate risks and the GHG emissions in their operations and supply chains. Biden would likely accomplish this by directing the US Securities and Exchange Commission (SEC) to mandate public corporate climate disclosures. Enforcement would complement these policies: failure to disclose (or inaccurately disclosing) climate risks and emissions would subject a company to potential enforcement and penalties.
Mandatory disclosures would be consistent with recent requests from some members of the regulated community. In October 2018, for example, more than fifty entities, executives, and academics sent a formal petition for rulemaking to the SEC calling on the Commission to “initiate notice and comment rulemaking to develop a comprehensive framework requiring issuers to disclose identified environmental, social, and governance (ESG) aspects of each public-reporting company's operations.”3 The SEC received many comments on the rulemaking request, but, to date, has not initiated such rulemaking.
Biden's presidential campaign was centered on climate policy, and we anticipate that this focus will permeate the future Biden administration's policies on many issues including international policy, environmental regulations and enforcement, public lands regulation, and requirements for public company reporting.
The regulated community should look for opportunities to engage with the new administration on climate and other environmental policies and future agency rulemakings.
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