With one week to go until the 2020 presidential election, the direction of environmental law and climate change policy, like so much else, hangs in the balance.
If President Trump wins re-election, we expect the administration to defend its regulatory rollbacks in court, pursue additional deregulation, and continue to weaken the capacity of the agencies responsible for environmental protection, natural resource conservation, and public health by undermining science, sidelining expertise, and reducing transparency and public accountability. In a second Trump term, the US withdrawal from the Paris Agreement, scheduled to take effect the day after the election, would proceed.
We have closely tracked President Trump’s regulatory rollbacks for four years, as well as his actions undermining agencies like EPA and the Department of the Interior. Now we are looking ahead to 2021 and beyond. We are launching a new page that highlights some of the administration’s most consequential deregulatory rulemakings — including repealing the Clean Power Plan and replacing it with minimal greenhouse gas standards for coal plants; substituting far weaker standards for the ambitious Obama-era fuel efficiency and greenhouse gas standards for new cars and trucks; the unprecedented decision to revoke California’s waiver of federal preemption, which allows the state to set its own vehicle greenhouse gas standards; and rescinding EPA’s methane standards for oil and gas operations on private and public land, as well as significant structural changes to EPA and DOI.
In addition to providing a snapshot of President Trump’s impact on climate change and environmental protection, this new page serves as a launch point for what comes next, whether it is a second Trump term or a new Biden administration. We also include analyses of the implications and larger significance of certain Trump administration actions, and posts on the broader policy landscape.
If Joe Biden prevails, he has pledged to rejoin the Paris Agreement, a step he can take without congressional approval or fear of judicial reversal. Rejoining the Paris Agreement almost certainly will entail a new US “nationally determined contribution” to update the Obama-era pledge of reducing greenhouse gas emissions 26-28% below 2005 levels. No doubt, the ambition of the new pledge will be tied to Biden’s plans for implementing his far-reaching campaign commitments, which he can do through a combination of spending, regulation, and substantive legislation.
As a first step, a Biden Justice Department almost certainly will ask the courts to hold in abeyance pending litigation challenging Trump’s rules. How forward-leaning a Biden administration might be in its rulemakings under existing laws like the Clean Air Act will reflect, in part, strategic calculations about how the most ambitious proposals might fare in the increasingly conservative federal courts, which are more and more skeptical of administrative power. Along with his three Supreme Court appointments, including, most recently, Amy Coney Barrett, President Trump has filled nearly one-third of the active positions on the federal courts of appeals.
In addition to reversing President Trump’s deregulatory agenda, we also expect a Biden administration to take advantage of non-regulatory strategies, using the government’s purchasing and lending power, including, for example, funding for federal procurement of electric vehicles; creating or expanding grant programs, financing options, and tax incentives for renewable energy development and deployment; and funding for Department of Agriculture programs to promote climate-beneficial agriculture and forestry practices.
Our new page will suggest some potential non-regulatory strategies and how they might be leveraged for maximum effect.
We will also suggest steps that the Federal Energy Regulatory Commission might take in a Biden administration to advance a clean energy agenda. FERC’s sweeping authority over the power sector’s interstate operations and planning can be used to facilitate clean energy deployment, whether or not Congress passes new legislation to price carbon or promote low-carbon energy sources. As president, Biden would likely immediately appoint the chair and nominate at least one new commissioner in 2021.
Vice President Biden’s climate and clean energy platform also promised that his administration would pursue its climate, clean energy, and environmental justice agenda through substantive legislation.
We anticipate substantial clean energy investments to be included in a recovery package, at least part of which could move quickly after the inauguration through the fast-track Budget Reconciliation process, which is not subject to filibuster in the Senate.
Vice President Biden has also pledged to call on Congress for an Energy Efficiency and Clean Energy Standard to achieve a zero-carbon electricity sector by 2035, and an “enforceable legal mechanism” to achieve a net-zero GHG emission US economy by 2050. The latter legislation could take a number of forms, including comprehensive legislation to price carbon economy-wide, for example through either a “cap-and-dividend” approach, or a carbon tax. Each idea faces challenges. And its prospects depend on the outcome of Senate elections. Even if Democrats retain control of the House and take control of the Senate, the margin in the Senate will matter. Until more unknowns are known, it will be hard to forecast the prospects for incremental or major climate legislation. We will track and analyze the major climate policy legislative developments, as they unfold.
If Vice President Biden wins, we will update our page with a forward-looking agenda, including our projections for how the new administration will proceed on various high-profile rulemakings to pursue the new president’s ambitious climate, clean energy, and environmental justice agenda. And we will track and analyze those rules as they develop. We hope you find our work valuable in the coming weeks and months.
Best wishes,
Jody Freeman, Founding Director and the Archibald Cox Professor of Law at HLS
Joseph Goffman, Executive Director
Ari Peskoe, Director, Electricity Law Initiative
Robin Just, Director of Outreach and Communications
Hana Vizcarra, Staff Attorney
Caitlin McCoy, Staff Attorney
Hannah Perls, Legal Fellow
Kathy Curley, Program Administrator
Kyra Davies, Communications Coordinator
Sara Burr Levy, Communications Specialist