On January 20, 2021, President Joseph Biden signed a series of executive orders to begin to set forth his administration's policy agenda. Among the executive orders he signed was the executive order "Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis" (the "Order"). This Order contains a series of directives to federal agencies and departments that will significantly impact the energy sector and signals the high priority the Biden administration is placing on addressing climate change.

The Order states the administration's policy on advancing environmental justice and directs agencies and departments to take specific steps to implement that policy. The Order's directives are phrased in terms of instructing agency and department heads to "consider" taking action, likely so as to avoid running afoul of the Administrative Procedure Act by prejudging the outcome of a rulemaking or other agency action. In practice, however, agency and department heads will consider the Order's directives as mandates. Accordingly, the policy set forth in the Order will likely guide agency actions for the entire administration.

In addition, the Order revokes a series of Trump-era executive orders and Presidential proclamations that sought to promote US energy production. Further, and significantly, the Order establishes a process for calculating the "social cost of carbon" for use in federal decision-making, including costbenefit analysis for rulemakings.

1. Policy Statement. The Order sets forth the Biden administration's policy to advance environmental justice. It states that it is the policy of the administration to:

listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.

2. Regulatory Review. The Order directs federal agencies to "immediately commence work to confront the climate crisis" and to undertake an immediate review of all actions issued during the Trump administration (including existing regulations, orders, and guidance documents) that are contrary to policies set forth in the Order. The Order directs all executive departments and agencies to "take action to address" the Trump administration actions, which includes suspending, revising, or rescinding those actions. The Order directs agency heads to submit to the Office of Management and Budget ("OMB") (a) within 30 days, a preliminary list of actions they are considering that would be completed by December 31, 2021, and (b) within 90 days, an updated list of actions they are considering that would be completed by December 31, 2025. It also directs agency heads to send to the National Climate Advisor (former Senator John Kerry) each list submitted to OMB as well as a list of any actions that would not be subject to OMB review. 

The Order also directs agency heads to consider any new actions to fully enforce the policy set forth in the Order

3. Specific Regulatory Reviews. The Order specifically directs federal agencies to "consider" suspending, revising, or rescinding a series of specified Trump administration regulations related to methane emissions, fuel economy standards, efficiency standards, and pollution standards by specified dates.

The regulations specified by the Order and the deadlines for agency action are as follows:

  • Methane Emission.
    • Emission Standards for New, Reconstructed, and Modified Sources Reconsideration (85 Fed. Reg. 57938), by September 2021.
  • Fuel Efficiency.
    • The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program (84 Fed. Reg. 51310), 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), by July 2021.
  • 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), by March 2021 (major revisions) and June 2021 (remaining revisions);
    • Final Determination Regarding Energy Efficiency Improvements in the 2018 International Energy Conservation Code (IECC) (84 Fed. Reg. 67435), by May 2021; and
    • 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), by May 2021.
  • Pollution Standards.
    • 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), by August 2021;
    • Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process (85 Fed. Reg. 84130), as soon as possible; and
    • Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information (86 Fed. Reg. 469), as soon as possible.

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