Biden’s Week One: Mapping Ambitious Climate Action

Biden’s January 20 Public Health & Environment EO directed all agencies to review actions taken during the Trump presidency for consistency with the policy objectives outlined by the order. (Sec. 2, EO 13990) This is a large undertaking requiring careful review of rulemakings at the Department of the Interior (DOI), Environmental Protection Agency (EPA), and elsewhere. Section 1 of the order makes it a policy of the Biden 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.”

The Public Health and the Environment EO was accompanied by a non-inclusive list of agency actions the White House expects the agencies to review. President Biden directed agencies to submit a list to the Office of Management and Budget (OMB) within 30 days of the order (by February 19) of any actions requiring OMB review that they are considering taking this year, and to submit a second list within 90 days of any actions they are considering taking by December 31, 2025. Agencies must submit these lists, as well as a list of any considered actions that do not require OMB review to Gina McCarthy, the National Climate Advisor. The resulting lists could provide a detailed map of the expected agendas of these agencies and a benchmark with which to measure progress. As of the date of publication of this piece, the initial 30-day lists have not been made public.

Biden also imposed deadlines for agencies to review and develop plans to address specific, high-priority Trump-era rules whose reversal is essential to accomplishing the administration’s goals. These are discussed in their relevant topical areas below.

To aid the agency reviews, Biden’s Chief of Staff Ron Klain sent instructions on January 20 for agencies to freeze all in-progress regulatory actions pending review. The memorandum directs agencies not to issue any rules or send any rules to the Office of the Federal Register for publication unless approved by a new Biden administration appointee. It also directs agencies to withdraw any rules already sent to the Federal Register but not yet published. For rules already published but not in effect, it asks agencies to consider postponing the effective date for 60 days from January 20 and opening a new 30 day public comment period. This will allow some time for review and planning. EPA also directed the Department of Justice (DOJ) to request stays or abeyances in any active litigation seeking review of Trump-era regulations. 

President Biden’s January 20 EO on Public Health and the Environment prioritized an affirmative approach to environmental justice (EJ), requiring agencies to integrate “achieving environmental justice as part of their missions.” Biden’s approach pairs the achievement of environmental justice goals with economic reinvestment in marginalized and underserved communities: “it is therefore the policy of my Administration to secure environmental justice and spur economic opportunity for disadvantaged communities that have been historically marginalized and overburdened by pollution and underinvestment in housing, transportation, water and wastewater infrastructure, and health care.” The January 27 EO on the Climate Crisis created a preliminary structure for these goals by establishing two new bodies to enforce and monitor the administration’s EJ priorities government-wide.

Biden’s EO sends a clear signal that EJ will now be a government-wide priority. The new administration can build on programs started under President Obama at EPA, which were subsequently undermined by the Trump administration. However, the administration’s success in implementing these EJ priorities will depend on how each agency integrates them via rulemaking, guidance, and other internal policies, and to what extent those priorities are enforced at both the federal and state level. In a separate executive order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, Biden revoked Trump’s executive order on Combating Race and Sex Stereotyping, which effectively blocked federal agencies and government contractors from conducting antiracism trainings. Agencies will likely commence these trainings as a first step towards ensuring staff are equipped to enforce the administration’s environmental justice priorities. 

New Advisory Bodies

In the January 27 Climate Crisis EO, President Biden created several new bodies to elevate and inform EJ priorities government-wide. Both groups are wholly advisory and have no rulemaking capacities. Neither group depends on distinct appropriations from Congress: the White House Environmental Justice Advisory Council (Advisory Council) will receive administrative support from EPA, and the the White House Environmental Justice Interagency Council (Interagency Council) will receive funding and support primarily from the Executive Office of the President. 

The first group, the White House Environmental Justice Interagency Council (Interagency Council), replaces the Interagency Working Group on Environmental Justice (Working Group). The Working Group was established in 1994 by President Clinton’s EO 12898, convened by EPA, and reported to the Deputy Assistant to the President for Environmental Policy. The January 27 Climate Crisis EO elevates the Interagency Council to the Executive Office of the President, chaired by the head of the Council on Environmental Quality (CEQ). The order also expands the Council’s membership to include the National Climate Advisor and the Federal Permitting Improvement Steering Council, and explicitly tasks them with developing accountability metrics and an annual public performance scorecard, the first of which will be published in February 2022. This suggests increased transparency and opportunities for public engagement on the administration’s progress in meeting its EJ goals. The order also tasks the Interagency Council with recommending additional changes to Clinton’s Environmental Justice EO 12898 within 120 days.

The second advisory body created by the Climate Crisis EO is the White House Environmental Justice Advisory Council (Advisory Council) that sits within EPA and advises the Interagency Council and Chair of CEQ. The Advisory Council is distinct from the National Environmental Justice Advisory Council (NEJAC), established by EPA in 1993 to advise the EPA Administrator on how to integrate environmental justice concerns into the agency’s programs. While the NEJAC will likely remain focused on integrating EJ priorities solely within EPA, the Advisory Council advises the White House and other agencies on integrating EJ priorities government-wide. 

Finally, the EO also establishes three new groups within Health and Human Services: an Office of Climate Change and Health Equity; an Interagency Working Group to Decrease Risk of Climate Change to Children, the Elderly, People with Disabilities, and the Vulnerable; and a biennial Health Care System Readiness Advisory Council. Both Councils will report directly to the National Climate Task Force (Task Force), which is chaired by the National Climate Advisor. The EO thus creates new, direct lines of communication between expert agency staff and the White House on issues of environmental justice. 

Improved Enforcement of Environmental Violations

One of the most important, and most difficult, commitments Biden has made is to “strengthen enforcement of environmental violations with disproportionate impacts on underserved communities through the Office of Enforcement and Compliance Assurance” (OECA) at EPA. These plans will likely build on Obama-era tools and guidance developed at EPA, including the EJ 2020 Action Agenda and the External Civil Rights Compliance Office’s (ECRCO) 2015-2020 Strategic Plan and Compliance Toolkit. Whether Biden can truly strengthen enforcement of environmental violations in overburdened communities will likely require improved EPA oversight of funding recipients’ Title VI programs, and increased investigative capacity, transparency, training, and oversight within state permitting offices. The Climate Crisis EO begins to address these concerns by tasking the Environment and Natural Resources Division (ENRD) within DOJ with coordinating with client agencies to create a “comprehensive environmental justice enforcement strategy.” If DOJ is able to create an Office of Environmental Justice, as recommended in the Climate Crisis EO, this will further help consolidate and coordinate public education, training, rulemaking, investigation, compliance review, enforcement, and recordkeeping to ensure improved enforcement across all agencies, including EPA.

Enhanced Data Tools

The executive orders also explicitly create tools to help communities and officials identify cumulative disparate impacts and health risks. The Climate Crisis EO directs the CEQ Chair to create a “geospatial Climate and Economic Justice Screening Tool” within six months and publish annual interactive maps highlighting “disadvantaged communities.” This tool will likely modify and expand upon EJSCREEN, EPA’s current environmental justice mapping tool, incorporating more advanced capabilities like those in California’s EJ Mapping Tool (CalEnviroScreen), while adding climate change-related indicators like flood risk and sea level rise data, and an expanded list of social vulnerabilities. 

The Climate Crisis EO also directs the EPA Administrator to create “a community notification program to monitor and provide real-time data to the public on current environmental pollution, including emissions, criteria pollutants, and toxins, in frontline and fenceline communities — places with the most significant exposure to such pollution.” This program is very ambitious and will require significant investments by state and local governments, likely facilitated by federal funding, in order to purchase, install, and maintain enough monitoring equipment to produce data with a fine-enough resolution to identify acute public health threats on the local level. For example, EPA’s current Air Sensor Guidebook recommends concentrating networks of sensors near industrial facilities or ports in order to achieve the “higher data quality” necessary to identify air pollution hotspots. This comes with the caveat that “no lower cost sensors currently meet [EPA’s] strict requirements” to establish regulatory-grade air monitoring systems. The Biden administration will also need to revisit regulatory changes made by the Trump administration that enabled regulated entities to evade stricter pollution monitoring controls (see the Greenhouse Gas Regulation section below). Finally, the Biden administration will need to ensure that policies designed to reduce greenhouse gas emissions include mandated emissions reductions in EJ communities and reductions in harmful co-pollutants such as soot and sulfur dioxide (for more on this issue, see scholarship by Dr. Nicky Sheats and Dr. Cecilia Martinez).

As a first step, however, on February 4, 2021, DOJ withdrew nine Trump-era policies that constrained the Environment and Natural Resources Division’s (ENRD) environmental enforcement capacities. These included a ban on the use of Supplemental Environmental Projects in settlements, which have historically been used to require regulated entities to invest directly in overburdened communities’ pollution monitoring programs, and policies that set a higher bar for prosecuting corporate polluters.

Reinvestment in Disadvantaged Communities

Perhaps the most impactful of the EJ commitments Biden makes is the “Justice40 Initiative.” Outlined in the Climate Crisis EO, this commitment promises that “40 percent of the overall benefits flow to disadvantaged communities,” particularly “in the areas of clean energy and energy efficiency; clean transit; affordable and sustainable housing; training and workforce development; the remediation and reduction of legacy pollution; and the development of critical clean water infrastructure.” These investments do not rely on new legal authorities, but rather on recommendations made within 120 days from the Chair of CEQ, Director of OMB, and the National Climate Advisor on how federal investments might be used to reach this goal. 

The Climate Crisis EO also sets a nearer-term goal for all agencies to identify within 60 days of the order’s publication how existing program investment funds can be redirected to meet the Justice40 Initiative goal, including through the use of interim guidance. How much flexibility agencies have to determine how they disburse federal funds will depend on the relevant statutory authority, regulations, and restrictions imposed by Congress via the appropriations process.

The Justice40 program’s success will also depend on how the administration defines “benefits’ and “disadvantaged communities”; to what extent communities are consulted and able to meaningfully participate in the project-design process; and the ease with which those communities are able to satisfy the often significant procedural hurdles agencies impose before grantees can access and spend federal funds. Biden’s Racial Equity EO helps to address communities’ unequal access to federal funding by requiring each agency to assess its programs and policies to determine “whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs.” Agencies must then provide a report to the Assistant to the President for Domestic Policy within 200 days of the order’s issuance. These include identifying barriers to accessing funds, benefits and services; procurement and contracting opportunities; and new policies, regulations, or guidance that may be necessary to enhance that access. These programmatic reviews are an important first step to enable agencies to meet the goals of the Justice40 program.

Relatedly, the Climate Crisis EO pays particular attention to the economic revitalization of vulnerable coastal communities and local economies dependent on coal, oil and gas, and power plants. First, the order recognizes as policy the “essential role” of coastal communities in mitigating climate change, including prioritizing nature-based solutions to strengthen community resilience, sequester carbon, and support biodiversity and fisheries. One mechanism for investing in that resilience will be the Civilian Climate Corps., established by the Climate EO and to be funded “within existing appropriations,” and thus potentially within this year’s budgetary cycle. The order also establishes an Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization, chaired by the National Climate Advisory and Assistant to the President for Economic Policy, and housed within the Department of Energy (DOE). The group’s first task is to submit a report to the President within 60 days describing “all mechanisms” available to direct federal grants, loans, technical assistance, financing, or procurement to support these communities. Such support will likely count towards the federal government’s Justice40 goal, and be supported by the same mechanisms including the provisions outlined in the Racial Equity EO for “underserved communities.”

On January 27, Biden issued an executive order (EO 14007) specifically directed at the President’s Council of Advisors on Science and Technology (PCAST). The order states that “it is the policy of my Administration to make evidence-based decisions guided by the best available science and data. Officials and employees across my Administration shall seek from scientists, engineers, and other experts the best available scientific and technological information and advice.” This policy marks a sharp departure from the Trump administration, particularly at EPA where leadership replaced qualified experts on the agency’s advisory committees, finalized a rule excluding critical science from agency decision-making processes, and limited the scientific information EPA shared with the public. (For more on how the Trump EPA undermined its scientific capacities, see EELP’s Mission Tracker page).

The order expands the council to 26 members, as compared to 17 members under President Trump and 21 members under President Obama. Under President Trump, the council was chaired by the Assistant to the President for Science and Technology (the “Science Advisor”). President Biden’s order states that the council will be co-chaired by the Science Advisor as well as 1-2 “non-Federal members,” with the option to designate up to three Vice Chairs.” This expanded structure more closely resembles the council established under former President Obama’s PCAST executive order, and reflects the ambitious mandate Biden establishes for the council to advise the President on a wide range of issues, including “policy affecting science, technology, and innovation, as well as on matters involving scientific and technological information that is needed to inform public policy relating to the economy, worker empowerment, education, energy, the environment, public health, national and homeland security, racial equity, and other topics.”

In addition to the PCAST order, on January 27, President Biden issued the Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking (Science Memo). The Science Memo explicitly states that “scientific findings should never be distorted or influenced by political decisions,” and scientific or technological information should be “subjected to well-established scientific processes . . . with appropriate protections for privacy.” As a first step to enforcing these policies, Biden entrusts the OSTP Director with various responsibilities, including ensuring each agency establishes and enforces “scientific-integrity” policies, and convening an interagency Task Force on Scientific Integrity, which will conduct a “thorough review of the effectiveness” of each agency’s policies developed since March 9, 2009, when former President Obama issued his Presidential Memorandum on Scientific Integrity. (Biden’s memo reaffirms both the 2009 memo and the 2010 Memorandum from the OSTP Director on Scientific Integrity). The OSTP Director’s review must be completed within 120 days, and the findings will be published on the OSTP website, including recommended best practices and lessons learned. The memo then provides a framework for each agency to submit updated policies to the OSTP Director, who will “expeditiously review” those policies to ensure they respond to the Task Force’s analysis.

President Biden’s Public Health and the Environment EO also explicitly instructed EPA to review and consider revising or rescinding the so-called “Secret Science” rule “as soon as possible.” The rule would have required EPA to assign less weight to scientific studies where the underlying data were not publicly available, despite the fact that most public health and epidemiological studies rely on patient data protected by confidentiality laws. However, on February 1, the District Court for the District of Montana vacated the rule at the request of the Biden administration, finding that EPA improperly issued a substantive rule under the Federal Housekeeping Statute, which only allows for procedural changes. The court sent the rule back to EPA to decide what to do next. EPA may decide to develop new guidance or new internal policy. If EPA wants to pursue a notice and comment rulemaking it will have to find a new basis upon which to issue a rule.

As part of the agency review mandated under the January 27 Science Memo, EPA will likely withdraw Trump-era guidance and directives that undercut the agency’s scientific review committees, both in terms of membership and decision-making processes. Perhaps the most well-known of these memos was Administrator Pruitt’s directive barring recipients of EPA grant funding from serving on the agency’s federal advisory committees to avoid a “conflict of interest,” though the directive did not impose similar restrictions on affiliates of regulated industries. Three federal courts ultimately struck down the directive in 2020. Under the Memorandum, EPA will likely withdraw other Trump-era directives that remain in effect. These include changing how EPA vets members of the Science Advisory Board (SAB) and Clean Air Scientific Advisory Committee (CASAC), and concentrating decision-making power with political appointees while sidelining SAB experts. 

EPA will also likely reverse Trump-era actions that undermined the agency’s  process for reviewing and setting the National Ambient Air Quality Standards (NAAQS). EPA sets the NAAQS for six “criteria pollutants” that affect public health, including soot and ground-level ozone. The NAAQS must be set with an adequate margin of safety and consider sensitive populations including children, the elderly, and people with respiratory conditions. EPA must review the NAAQS every five years. That review typically takes place in two stages. First, EPA establishes the air quality standard by only considering public health science. Then EPA incorporates economic and technological considerations to determine how those standards should be met. However, on May 9, 2018, Administrator Pruitt signed the Back-to-Basics Memorandum accelerating the process for reviewing and setting the NAAQS. The memo also collapsed these two steps into one, potentially injecting cost and feasibility considerations into the standard-setting process, and thus jeopardizing EPA’s ability to establish health-based air quality standards under the NAAQS Program. In issuing the Back-to-Basics memo, Pruitt relied on an April 12, 2018 Trump directive to “ensure efficient and cost-effective implementation of the NAAQS.” President Biden revoked President Trump’s April 12 memo in his January 20 Public Health and the Environment EO.

Former President Trump also left a more permanent legacy: the mass exodus of government scientists from environmental agencies. Between 2016 and 2020, more than 1,000 scientists retired or quit from a science-based federal agency. 672 of those scientists were at EPA, with more than 500 specializing in pollution control and environmental enforcement, and more than 100 specializing in environmental engineering related to clean air and water. (See also EELP’s 2020 report on public lands management under President Trump for a look at how the loss of expertise in Interior bureaus like the Bureau of Land Management (BLM) has hindered that agency.) It will take time to fill these critical positions.

President Biden’s January 20 Public Health and the Environment EO included specific directives for some of the most notorious actions of the Trump administration that undermined regulations designed to reduce GHG emissions. These are also important building blocks for the country’s commitments under the Paris Agreement and for a new Nationally Determined Contribution.

Methane Emissions

EPA’s Methane Rules

In 2012, EPA issued New Source Performance Standards (NSPS) for volatile organic compounds (VOCs) from oil and gas sources. This rule did not directly regulate GHGs but did contribute indirectly to reducing emissions of methane because controls for VOCs also had the side benefit of controlling methane emissions. In 2016, EPA issued a new NSPS rule for oil and gas that separately regulated methane in addition to VOCs. Both rules covered emissions sources at the well site, gathering and boosting stations, processing plants, and compressor stations but the 2016 rule expanded the sources covered by the standards at those sites. EPA also issued Control Technique Guidelines in 2016 to states with moderate nonattainment areas for ozone, in effect directing them to amend their state implementation plans to address VOCs from existing sources via a set of controls that would also reduce methane emissions at those sources. Less than two weeks later, EPA issued an Information Collection Request (ICR) to operators, asking them to identify ways to control methane from existing oil and gas sources—a necessary information gathering step for developing methane emissions regulations for existing oil and gas sources.

Trump’s EPA took a very different stance on regulating methane emissions. It canceled the Information Collection Request for existing oil and gas operations and withdrew the Control Technique Guidelines. President Trump directed EPA to reconsider the 2016 methane standards for the oil and gas industry in his Executive Order on Promoting Energy Independence and Economic Growth. In September 2020, EPA published two final rules: the Review Rule (also referred to as the Policy Rule) that eliminated methane emissions standards for oil and gas sources and removed storage and transmission sources from the VOC standards, and the Reconsideration Rule (also referred to as the Technical Rule) revising the remaining requirements for controlling VOCs. 

To eliminate methane regulation and cut storage and transmission sources from the oil and gas source category, EPA relied on an interpretation of its own authority under the Clean Air Act (CAA) that differed significantly from its prior positions. In the 2020 rules, EPA argued that the prior rule improperly included transmission and storage sources in the Crude Oil and Natural Gas Production Source Category. EPA also said it must make a new determination that methane emissions from the remaining sources in the category contribute significantly to pollution that can endanger public health or welfare in order to regulate their methane emissions. This is an additional step EPA had not previously understood the CAA to require. (See EELP’s analysis of the final oil and gas methane rules for a more extensive explanation of the legal theories in these rules and how they break with prior agency positions.) EPA acknowledged in its Regulatory Impact Analysis that these rule changes would result in higher emissions than would have occurred under the rule promulgated during the Obama administration. 

President Biden’s January 20 Public Health and the Environment EO directs the EPA to consider “suspending, revising, or rescinding” the Reconsideration Rule by September 2021. (Sec. 2(a)(i)) It also directs the agency to consider proposing new standards of performance and emission guidelines for methane and VOC emissions from existing oil and gas operations that include the exploration and production, transmission, processing, and storage segments by September 2021. (Sec. 2(c)(i)) 

To finalize rules for existing sources, EPA must have standards in place for methane emissions from new sources. EPA will have to contend with the legal positions taken in the September 2020 Review and Reconsideration Rules. In order to reestablish methane emissions standards for oil and gas sources in all of the segments outlined in the Public Health and the Environment EO (E&P, transmission, processing, and storage), the agency will either 1) make a new finding of significant contribution specific to the transmission and storage segments as their own source category, following the Trump-EPA reasoning that these were not part of the original oil and gas source category, and issue New Source Performance Standards for methane for both source categories, or 2) rescind the legal interpretations of the Review Rule and enact an NSPS that includes all of these segments under one source category, as the Obama-era rule did. 

The Biden administration will have substantial support for renewed efforts to regulate methane from oil and gas sources. Major oil and gas industry players opposed the Trump-era rollbacks of the original standards and recognition of the importance of controlling methane is only growing within the industry. New data on methane releases from oil and gas operations has reinforced the importance of the topic, likely significantly changing any cost benefit or contribution analysis. The financial sector and investors have increased pressure on companies to address the problem of unnecessary methane emissions, leading to new corporate commitments. 

In addition to controlling methane emissions from oil and gas development, EPA is expected to review emissions guidelines for methane from existing municipal landfills. 

Interior Methane Controls 

At DOI the new administration may consider reviving efforts to control methane and other air pollutants in onshore and offshore oil and gas activities as it works through the regulatory review directed by the Public Health and the Environment EO. 

This includes the offshore air quality rule. The rule finalized in June 2020 gutted much of the requirements included in the Obama-era proposal, significantly limiting its impact on emissions from offshore oil and gas operations. The Biden  administration will likely want to revisit the proposal and consider revising the rule to better control methane and other emissions from offshore operations. 

Additionally, BLM must consider whether to revive the waste prevention rule designed to capture otherwise flared and vented methane. Both the original 2016 rule and the Trump administration’s rollback of it finalized in 2018 were vacated by federal courts. This leaves the BLM in a position to start fresh but with two opinions that exhibit sometimes contradictory interpretations of the Bureau’s authority to contend with in doing so. 

Biden’s Climate Crisis EO ordered a review of the leasing and permitting program as a whole (discussed in more detail in the Oil & Gas Production section below). How DOI decides to address methane control regulations will likely figure into this whole-program review.

Abandoned Mines and Wells

President Biden’s January 27 Climate Crisis EO also sets a policy to address leaks at abandoned mine and oil and gas sites and provide job opportunities in energy communities by cleaning up these sites. (Sec. 217) Recent studies indicate that the amount of methane emitted by the approximately 3.2 million abandoned oil and gas wells in the country is much higher than previously acknowledged. Prioritizing funding for cleaning up these sites would contribute significantly to methane control. The new administration may also want to reconsider a proposed rule that would reduce the amount of financial assurance required for offshore oil and gas development in favor of a more protective approach. This could help prevent the number of offshore orphaned wells in the future.

Fuel Economy and Greenhouse Gas Standards for Vehicles

Transportation is the largest source of greenhouse gas (GHG) emissions in the United States, accounting for nearly 29% of total emissions nationwide. The largest share of these emissions comes from cars and trucks. In the EO on Public Health and the Environment, President Biden directs EPA and the National Highway Traffic Safety Administration (NHTSA) to consider revising, suspending, or rescinding two Trump-era rules that prevent both the federal and state governments from setting stricter environmental standards for vehicles. The first, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, revoked California’s 2013 waiver under the CAA that allowed the state to set tougher GHG emission and zero-emission vehicle (ZEV) standards than the federal government, and blocked other states from adopting those standards. That rule must be reviewed by April 2021. The second, The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks, weakened Obama-era GHG and fuel economy standards for light duty vehicles. That rule must be reviewed by July 2021. 

The order frames these reviews as a crucial step in “establishing ambitious, job-creating fuel economy standards,” and requires the agencies to “consider the views of representatives from labor unions, States, and industry.” (For more background on these rules, visit EELP’s Regulatory Rollback Tracker Page). On February 8, 2021, the DC Circuit granted a request from EPA and NHTSA to pause litigation challenging the One National Program until the administration’s review is complete. Under the court’s order, the government must submit updates to the court every 90 days.

In order to reach net-zero economy-wide emissions by 2050, EPA and NHTSA will need to do more than undo Trump’s regulatory rollbacks. The Biden administration will need to set new, more ambitious tailpipe standards while gaining buy-in from the US auto industry to meet these new standards. Recent climate commitments made by General Motors, the nation’s largest automaker and other manufacturers signal a positive “sea change” towards enhanced cooperation after decades of intransigence. 

EPA and NHTSA will have to decide how strict those new standards should be. The Obama-era rules required 5% annual improvements, which the Trump rule decreased to 1.5% through model year 2026. Current voluntary agreements between the California Air Resources Board (CARB) and six automakers require 3.7% annual reductions in GHG emissions from new passenger cars. The participating automakers include BMW of North America (including Rolls Royce for purposes of the agreement), Ford, Honda, Volkswagen Group of America (including VW and Audi), and Volvo.

Crafting new clean car rules will also take time. Under the Energy Policy and Conservation Act (EPCA), the Secretary of Transportation must give automakers 18 months lead time before introducing new fuel economy standards. EPA is already drafting interim auto pollution standards, likely based on the CARB agreement, to be released by April 1, 2021 (April 1 is the cutoff date for model year 2022).

The Biden administration can also empower states to adopt even stricter GHG emission and ZEV standards by restoring California’s CAA waiver or granting a new waiver request. Approving California’s waiver would also restore rules in 13 other states that have committed to adopt California’s standards. However, EPA would first have to first rescind the One National Program rule finalized under the Trump administration, which would likely be subject to further litigation. (For more on how the Biden EPA could rescind and replace the One National Program rule and reissue California’s waiver under the CAA, see analysis by Lia Catteneo, JD 2021, here).

Appliance- and Building-Efficiency Standards

Under former President Trump, the DOE declined to set compliance dates for certain standards, modified other standards, and proposed changes to its process for developing standards and testing equipment. Among these changes was a new “process rule” that changed how DOE develops energy conservation standards for household and commercial appliances. Specifically, the rule establishes a “threshold” that new or revised rules must meet, and allows the use of industry-led test procedures to determine efficiency standards. DOE also issued the “economic justification rule,” which requires DOE to simultaneously consider costs when setting energy efficiency standards. As part of the administration’s broad regulatory review under the Public Health and the Environment EO, President Biden ordered DOE to review both rules and propose major revisions by March 2021, and any remaining revisions by June 2021. There are several cases pending challenging the legality of both rules. The order also requires DOE to review the Test Procedure Interim Waiver Process rule, which requires DOE to issue a decision on whether to grant an applicant’s request for a test procedure waiver within 45 business days, or the waiver is automatically granted.

The Trump DOE also issued two notices adopting updated energy efficiency codes and standards for buildings. The first notice, issued December 10, 2019, adopted the 2018 version of the country’s model building energy code, the International Energy Conservation Code (IECC), triggering a statutory obligation on states to either adopt or exceed those standards. However, the US Conference of Mayors (USCM) already unanimously adopted these standards in 2018. The second notice adopted the 2016 minimum energy efficiency standard for buildings (excluding low-rise residential buildings) set by three standards organizations (ANSI, ASHRAE, and IESNA). Under the same EO, President Biden ordered DOE to review both of these notices by May 2021, likely in anticipation of adopting the 2021 IECC code. 

President Biden also requires DOE to review several final rules issued under former President Trump delaying, maintaining, or weakening energy efficient standards for particular consumer products, including clothes washers and dryers, dishwashers, incandescent light bulbs, commercial boilers, portable air conditioners, industrial air compressors, and uninterruptible power supplies. However, the order does not explicitly require DOE to review Trump-era rules setting new energy conservation standards for ceiling fans, walk-in freezers, and residential central air conditioners and heat pumps, and narrowing testing requirements for showerheads. (See EELP’s Rollback Tracker page covering some of these efficiency standards here.) 

Power Plant Emissions

One of the Trump administration’s top priorities was to repeal the Obama-era Clean Power Plan (CPP), a landmark rule that set carbon pollution limits on existing power generators for the first time. On July 8, 2019, the Trump EPA repealed and replaced the CPP with the Affordable Clean Energy (ACE) Rule, based on a narrow interpretation of the CAA. This narrow interpretation would have prevented the Biden administration from adopting more flexible and efficient mechanisms of reducing GHG emissions at coal and fossil fuel-powered plants. 

In recognition of the ACE Rule’s debilitating impact on the Biden administration’s ambitious climate agenda, President Biden ordered EPA to review the CPP repeal and ACE Rule as part of the broader review required under the Public Health and Environment EO. However, just before Biden took office, the DC Circuit struck down the ACE Rule, finding that the Trump EPA based the rule on a “fundamental misconstruction” of the CAA, and remanding the rule to EPA. EPA has since issued a memo to its regional administrators confirming its view that the DC Circuit’s opinion did not reinstate the CPP, suggesting the administration will likely issue updated emission standards for existing power plants that reflect “ongoing changes in electricity generation.”

In addition to regulating GHG emissions from power plants under the CPP, the Obama EPA issued Mercury and Air Toxics Standards (MATS) limiting the amount of mercury and other toxic pollutants emitted from coal- and oil-fired power plants. Under Section 112 of the CAA, EPA may set pollution-control standards for power plant emissions of hazardous air pollutants (HAPs) if the agency finds it “appropriate and necessary” to do so based on an assessment of the public health hazards posed by those emissions. 

While the MATS rule does not directly regulate GHGs, it does address a crucial public health concern: power plants continue to be the dominant emitters of air toxins in the US, including mercury, acid gases, and many toxic metals. Also, the Trump EPA’s efforts to undermine the MATS rule are emblematic of a broader legal strategy used by the administration to facilitate its deregulatory agenda. Despite bipartisan and industry support of the MATS rule, in May 2020, EPA published a final rule withdrawing the supplemental appropriate and necessary finding. The Trump EPA argued that the significant “co-benefits” of reducing soot (PM2.5) should not be included in the agency’s cost-benefit analysis, simply because PM2.5 is regulated under a different statutory provision than HAPs. At the same time, EPA also finalized a residual risk and technology review determining that the 2012 MATS adequately protect public health and should not be tightened. The Trump EPA would later finalize a rule requiring EPA to isolate the “direct” and co-benefits of all future air pollution regulations, which could affect the Biden administration’s ability to issue rules reducing GHG emissions (see discussion of this rule below under Social Cost of GHGs and Cost-Benefit Analysis). While EPA left the MATS rule intact, reversing the supplemental finding removes the rule’s legal foundation, thus making the standards vulnerable to legal challenge. There are now several ongoing lawsuits challenging the legality of the MATS, EPA’s reversal of the supplemental finding, and EPA’s residual risk and technology review. As of February 24, 2021, all are being held in abeyance.

In the Public Health and the Environment EO, President Biden specifically directed the EPA Administrator to consider suspending, revising, or rescinding the May 2020 rule reversing the appropriate and necessary finding. EPA must complete that review by August 2021. 

In April 2020, EPA also issued a final rule adjusting emissions limits for four power plants that burn eastern bituminous coal refuse (a form of coal mining waste), allowing the affected plants to release higher amounts of acid gas and sulfur dioxide. Three of those plants are located in Pennsylvania (the Scrubgrass, Ebensburg Power, and Colver Power Plant Project), and one in West Virginia (the Grant Town Power plant). Environmental groups filed a petition for review in June 2020 challenging the rule; this litigation is still ongoing. To-date, the Biden EOs have not explicitly addressed this rule.

Social Costs of GHGs and Cost-Benefit Analyses

In addition to rolling back source-specific environmental requirements, the Trump EPA changed how the costs and benefits of environmental regulation are measured in order to justify its deregulatory agenda. In the context of regulating GHGs and other air pollutants under the CAA, EPA did this in two ways: 1) it created a cost-benefit analysis process that prevents full consideration of the public health benefits of air pollution regulation and 2) it adopted an arbitrarily low estimate of the cost of GHG emissions, ignoring extensive scientific work already conducted on the topic. President Biden took steps to reverse both of these actions in his January 20 Public Health and the Environment EO.

First, Biden instructed EPA to review and consider revising or rescinding a rule finalized in December 2020 defining a restrictive approach to considering benefits and costs in the CAA that could substantially limit the agency’s ability to improve air quality and reduce emissions. (Sec. 4) The rule, deceptively titled “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” requires the agency to disaggregate the public health benefits “targeted” by the regulation from other co-benefits, forcing the agency to arbitrarily minimize the value of reducing harmful air pollutants not targeted under the particular statutory provision. The rule also requires a clear or likely causal relationship between the exposure to the pollutant and its health effects based on human data (which the administration restricted the use of in its “Secret Science” rule discussed above). (See more about how this rule diminishes the ability of EPA to fulfill its obligations under the CAA in our previous analysis.) Biden instructed EPA to address this rule “as soon as possible.” 

In Section 5 of the Public Health and the Environment EO Biden reinstated the Interagency Working Group on the Social Cost of Greenhouse Gases disbanded by Trump, outlining a new list of members. The order also directed the Working Group to publish an interim Social Cost of Carbon, Social Cost of NOx (Nitrous Oxides), and Social Cost of Methane within 30 days of his order, and final versions by January 2022. The Working Group published its interim Social Cost of GHGs on February 26, completing the first part of this directive. These interim estimates are the Obama-era estimates adjusted for inflation. They restore the prior discount rate, and consider global impacts rather than just domestic. The Working Group will now turn to considering new science developed since the Obama-era estimates were published, the National Academy of Sciences critiques and recommendations, and additional public comment collected through an upcoming Federal Register notice, as well as a planned robust stakeholder engagement process. The interim estimates place the Social Cost of Carbon at $51 per ton at a 3% discount rate, but the final estimates could use a lower discount rate and result in a higher cost.

President Biden also instructed the Working Group to recommend where these Social Costs of GHGs should be applied (such as which areas of decision making, budgeting, and procurement) by September 1, 2021, and to recommend a process for regular review and updating of the figures by June 1, 2022. 

The president’s instructions on the social costs of GHGs signals a sharp break with the Trump administration’s approach. Noting how important it is for agencies to “capture the full costs of greenhouse gas emissions as accurately as possible, including by taking global damages into account,” Biden begins to repair the damage done by the prior administration that instead undercut efforts to quantify these costs and narrowed the range of costs and benefits considered relevant to the rulemaking process. The Trump EPA sought to change how the agency calculated regulatory benefits through myriad actions that shrank the scope of benefits the agency considered, changed the methodologies used to calculate benefits, and restricted the scientific evidence the agency could rely on in its decision making (for more on these actions, visit EELP’s EPA Mission Tracker). These actions were evident in numerous rulemakings at EPA, such as in the Affordable Clean Energy rule (ACE) that replaced the Clean Power Plan and the MATS rule (both discussed in the Power Plant Emissions section above), as well as in other agencies’ rulemakings like BLM’s rollback of the Methane Waste Prevention Rule, whose use of the Trump-era interim social cost of methane was heavily criticized by the court that vacated the action. 

Of particular note is that in the Public Health and Environment EO, Biden commented on the importance of “taking global damages into account” when assessing the costs and benefits of GHG regulation. The Trump administration restricted its consideration of costs and benefits of rulemakings that would lower GHG emissions to only those it could determine were within the confines of US borders—an endeavor that defied logic and science, and was specifically pointed to as an arbitrary approach in the case about the BLM Methane Waste Prevention rule rollback. In addition, Biden pointed to the importance of considering a wide range of climate-related impacts such as “changes in net agricultural productivity, human health, property damage from increased flood risk, and the value of ecosystem services.” This could provide some insight into the type of work the revived Interagency Working Group will take on. Biden also asked the Working Group to consider “the extent [to which] current methodologies do not adequately take account of climate risk, environmental justice, and intergenerational equity.” In a possible nod to concerns raised by youth climate activists, as well as the Trump administration’s devaluation of the future benefits of GHG regulation, Biden said the new methodologies should “reflect the interests of future generations in avoiding threats posed by climate change.”

Leasing Pause and Regulatory Review

In order to achieve his ambitious climate goals, President Biden has recognized the need for a wholesale review of federal energy development and management policies. Outside of environmental regulations the federal government’s role in managing oil and gas development is limited to the federal public and tribal lands it manages. In his January 27 Climate Crisis EO, President Biden ordered a pause on all new oil and gas leasing on public lands or in federal waters while DOI conducts a “comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices” that includes consideration of its climate impacts. (Sec. 208) The pause does not prevent continued activity on existing leases and many active leases and drilling permits mean substantial development of oil and gas resources is likely during this review.

President Trump came to office touting an “America first” energy-dominance agenda that attempted to dramatically expand onshore and offshore areas available for leasing and to systematically undo Obama-era regulatory reforms. The Obama-era rules focused on lessening environmental impacts of development and fixing serious inadequacies in regulatory oversight laid bare by the Deepwater Horizon accident. 

Although the Trump administration revised, rescinded, and halted oil and gas safety and environmental regulations and aggressively leased onshore federal lands, it was unable to fully realize his plans to dramatically expand offshore leasing. A federal court deemed his directive to rescind President Obama’s withdrawal of certain waters from leasing a violation of the Outer Continental Shelf Lands Act (OCSLA), halting the Bureau of Ocean Energy Management’s (BOEM’s) draft proposed five year leasing program in its tracks while the administration appealed the decision. President Biden revoked Trump’s executive order that led to the litigation (EO 13795) in his January 20 Public Health and Environment EO, reinstating President Obama’s prior leasing protections. 

The President and DOI have significant leeway regarding what lands to make available for oil and gas leasing and flexibility to change those determinations. As the new administration reviews its leasing and permitting programs, it will not need to contend with an existing offshore leasing plan that contradicts its current policy goals. It will, however, need to review onshore resource management plans and planned lease sales.

The Biden administration must also address significant rollbacks of safety and environmental regulation for oil and gas development as it reconsiders its oil and gas program. EPA and BLM’s methane emissions standards and waste prevention rules are discussed above in the GHG regulation section. However, numerous other rules were revised or rescinded during the Trump era, particularly those specific to offshore operations. Under Trump, BOEM and the Bureau of Safety and Environmental Enforcement (BSEE) revised and rescinded rules designed to improve the safety of offshore drilling operations and to prevent another Deepwater Horizon-style blowout, eliminated financial assurance requirements for operators, dramatically rolled back proposed air quality protection provisions, weakened safety and environmental protection requirements for exploratory drilling in the Arctic, and resumed permitting for seismic surveys in areas the administration planned to open for leasing. These changes substantially unwound work that grew out of the review of offshore oil and gas operations after the devastating Deepwater Horizon accident (read more about the reorganization of the permitting and regulating bodies and revisions to safety and environmental rules resulting from this review in our 10 year anniversary piece.)

Onshore, the Trump administration took a much more permissive approach to leasing than its prior administration and made multiple attempts to encourage faster permitting of energy projects (mostly through executive order directives about environmental reviews, permitting timelines, and the like). It opened new areas to leasing, in some cases removing prior protections (see the public lands section below), and attempted to weaken environmental protections for endangered species and streamline environmental review requirements. 

The Biden administration’s regulatory review and review of permitting and leasing practices will need to consider all of these Trump-era actions. Many of the directives regarding permitting speed, environmental reviews, and similar issues initially arose in Trump executive orders, which were revoked in Biden’s Public Health and Environment EO (Sec. 7; see also our table describing all Trump executive orders revoked by Biden’s week one environmental orders). The permitting and leasing review will also consider whether to adjust royalties for energy development “to account for corresponding climate costs” (Sec. 208 of Climate Crisis EO) and to what extent the government is directly subsidizing fossil fuel development (Sec. 209 of Climate Crisis EO).

Protecting the Arctic 

From Day One, President Biden took several actions signaling a seismic shift in energy development in the Arctic. These actions temporarily halted present oil and gas development activities in the Arctic National Wildlife Refuge (Arctic Refuge), reinstated Obama-era withdrawals of offshore areas in the Arctic from future leasing, and temporarily suspended all new onshore oil and gas leasing in the National Petroleum Reserve in Alaska (NPR-A).

Arctic Refuge

In the Public Health and the Environment EO, Biden temporarily halted the oil and gas leasing program in the Coastal Plain of the Arctic Refuge. The Coastal Plain consists of 1.5 million acres abutting the Beaufort Sea in northeastern Alaska. While nearly 80% of the Arctic Refuge is protected from oil and gas development under a 1980 law, the Coastal Plain is not. As part of the 2017 Tax Cuts and Jobs Act, Congress authorized oil and gas exploration, leasing, development, and production in the Coastal Plain, and specifically ordered the Secretary of the Interior to conduct at least two lease sales within 10 years. Despite persistent objection from States, Alaska Native tribes, environmental groups, and members of Congress, the Trump administration held its first lease sale in the Coastal Plain on January 6, 2021. On the last day of the Trump administration, BLM’s Alaska Branch conveyed nine of the 11 sold leases, totaling 437,804 acres. 

In temporarily halting all federal activities related to the Coastal Plain leasing program, President Biden pointed to the program’s “alleged legal deficiencies . . . including the inadequacy of the environmental review” under the National Environmental Policy Act (NEPA). The order requires the Secretary of the Interior to review the program and conduct a new analysis of the program’s environmental impacts. The order does not impose a deadline on that review. 

As the secretary reconsiders the Record of Decision (ROD) for the Coastal Plain leasing program, several large financial institutions have publicly withdrawn their support for subsets of projects that exacerbate greenhouse gas emissions, including drilling in the Arctic Refuge. Specifically, Goldman Sachs Group Inc., JP Morgan Chase & Co., Wells Fargo & Co., Citigroup, Morgan Stanley, and Bank of America have all stated that they will not finance oil and gas projects in the Coastal Plain. These commitments directly informed a proposed rule from the Office of the Comptroller of the Currency (OCC) under former President Trump designed to prevent banks from refusing to finance categories of projects or companies. The OCC finalized the rule in the last week of the Trump presidency, only ten days after the public comment period on the proposal closed. However, the week after President Biden took office, the Comptroller of the Currency paused the publication of the final rule, allowing the next confirmed comptroller to review the rule and the public comments received on the proposal. Congressional Democrats are reportedly considering using the Congressional Review Act (CRA) to eliminate the rule. (See more about this rule and other climate-related financial regulatory actions in our recent piece on the topic.)

NPR-A

On January 20, the Biden administration also abruptly halted the Trump administration’s aggressive expansion of oil and gas leasing and development in the NPR-A. This area, first designated in 1923 by President Harding, is the nation’s largest block of public land, with much of the reserve protected from oil and gas development due to its significant environmental value. These areas include the Utukok River and the Teshekpuk Lake area on Alaska’s north slope, which is one of the Arctic’s most important wetlands. Under former President Trump, BLM conducted multiple lease sales in the NPR-A, and opened an additional 18.7 million acres for leasing, including the Teshekpuk Lake area. BLM also approved ConocoPhillip’s Willow Project in the NPR-A, which is predicted to produce 590 million barrels of oil over 30 years. The project will require the use of thermosiphons, or “chillers,” to keep permafrost frozen near the project’s drill pads. Alaska Native and environmental groups challenged BLM’s approval of the project, arguing BLM violated NEPA by failing to account for the project’s GHG emissions, and failing to consider reasonable alternatives.

DOI also temporarily suspended certain agency actions related to onshore oil and gas leasing and development, with limited exceptions, for 60 days, or until March 21, 2021. This includes, among other activities, the issuance, revision, or amendment of any Resource Management Plans (RMPs); granting of any property interest; and the issuance or extension of a lease or drill permit in the NPR-A. President Biden also specifically required DOI to review the ROD for the Willow Project consistent with his Environment and the Public Health EO. On February 13, the Ninth Circuit blocked ConocoPhillips from breaking ground on the Willow Project for the duration of the lawsuit. In its order, the court agreed that plaintiffs would likely suffer irreparable harm if construction were allowed to continue, and are likely to succeed on at least one of their NEPA claims. The court will hear arguments in late April at the earliest.

Offshore Leasing

In the same January 20 order, President Biden reinstated two Obama-era actions: the Northern Bering Sea Climate Resilience executive order issued on December 9, 2016, and a presidential memorandum issued December 20, 2016 withdrawing certain portions of the Arctic outer continental shelf (OCS) from mineral leasing. President Trump had revoked these actions as part of his Executive Order 13795, Implementing an America-First Offshore Energy Strategy. The Obama-era order designated 112,300 square miles in the US northern Bering Sea and Bering Strait region as a “climate resilience area,” and created an explicit role for Alaska Native tribes in federal agency decision making related to the area by establishing the Bering Intergovernmental Tribal Advisory Council. Both the Obama-era order and Biden’s reinstatement of that order represent many years of advocacy led by Kawerak Inc., the Association of Village Council Presidents, and the Bering Sea Elders Group on behalf of more than 70 federally recognized tribes in the region.

By reinstating these Obama-era actions, President Biden re-withdrew 125 million acres of the Arctic offshore from oil and gas development. Reinstating the Obama-era order removed two areas (the Norton Basin Planning Area and parts of the St. Matthew-Hall Planning Area) that represent a very productive high-latitude ecosystem, and support the seasonal migration of hundreds of thousands of marine mammals and birds. Reinstating the memorandum also withdrew portions of the Beaufort and Chukchi Seas off the coast of northern Alaska, which include highly productive ecosystems, providing crucial habitat for wildlife migration and subsistence resources for many Arctic indigenous communities.

Keystone XL Pipeline 

In addition to initiating a wholesale review of leasing and permitting practices and a detailed review of Trump-era regulatory changes, President Biden also revoked the presidential permit that would have allowed construction of the Keystone XL pipeline across the US-Canadian border in his January 20th Public Health and Environment EO (Sec. 6). Pointing to a 2015 determination that the pipeline would not serve the national interest and the increasing impact of climate change on our economy since that time, he revoked the permit issued by President Trump in 2019. (See more about the history of this pipeline project’s permits and litigation on our Regulatory Rollback Tracker page.)

President Biden pledged during the campaign to “[e]nsure the US achieves a 100% clean energy economy and reaches net-zero emissions no later than 2050.” His plans to reach that goal are not yet fully defined and will likely depend on what can be accomplished by working with Congress. But he did take steps in his early executive orders to move the machinery of the executive branch towards that goal. 

Offshore Wind

One area within the president’s power to influence is the speed and expanse of the offshore wind permitting process. In his January 27 Climate Crisis EO President Biden ordered DOI to review the siting and permitting processes for public lands and federal waters and identify steps to encourage renewable energy development. This directive did not come with a deadline. He also established a goal of doubling offshore wind by 2030. That wording diminishes the vision of the administration as there is virtually no offshore wind in federal waters right now, but there are a significant number of active leases and applying that directive to areas under lease or open for lease sales would be a significant expansion of the federal offshore wind program. BOEM has not yet been able to steer a large-scale wind project all the way through the permitting process to construction. It has repeatedly run into delays with the Vineyard Wind project, which is  closest to this goal line. The agency has been working on revisions to its permitting process in part to address this issue. They were expected sometime in 2020 but BOEM has not yet released any new proposals. The work already underway at BOEM may help hasten BOEM and BSEE’s work in response to President Biden’s January 20 EO. The Vineyard Wind project has also seen recent promising movement as BOEM announced it would resume work to finalize the environmental review of the project.

Federal Government Energy Use, Procurement Policies, and R&D

President Biden can also move towards his clean energy goals without congressional action by leveraging the role of the federal government as an energy user and funder of research and development. His January 27 Climate Crisis EO included a number of directives to that effect. In particular, he directed the Secretary of Energy to identify ways to “drive innovation and deployment of clean energy technologies” (Sec. 102(i)) and to identify opportunities for federal funding to spur innovation, commercialization, and deployment of clean energy technologies and infrastructure and to prioritize such investments in the budget (Sec. 210).

President Biden also announced the policy of the government to “lead by example” on clean energy, buildings, vehicles, and products (Sec. 204); ordered the CEQ, OMB, and General Services Agency (GSA) to develop a plan to facilitate a carbon-free electricity, clean- and zero emission-vehicles for government fleets, and recommend any necessary legislation within 90 days (Sec. 205). (See more about how President Biden can expand electric vehicle adoption in the US vehicle fleet in this analysis by Ari Sillman, JD 2021) These directives were paired with specific instructions about the adherence to Made in America laws like Davis-Bacon, prevailing wage provisions, and benefit requirements as well as his January 25 Made in America EO, and requested that the Department of Labor update its prevailing wage requirements. (Sec. 206).

To expand clean energy production to the levels necessary to meet President Biden’s 100% clean energy goal the country needs to rapidly expand its clean energy production. This may require a revised environmental review process that more directly takes into account the climate change mitigation and adaptation impacts of a project. 

The Trump administration took several steps to reduce the rigor of NEPA-required environmental reviews and decrease the time they take. These included revoking prior guidance on how to consider greenhouse gas emissions and proposing a replacement that de-emphasized reviews of cumulative impacts, revising the CEQ’s implementing regulations for NEPA (redefining terms to exclude projects from review). The administration also revised NEPA review procedures within agencies to limit the scope of review, expand the range of projects eligible for categorical exclusions, and quicken the timetable for reviews. 

President Biden’s January 20 Public Health and the Environment EO directed the CEQ to revoke its draft NEPA GHG guidance and review and potentially update the 2016 guidance that the Trump administration rescinded. (Sec. 7) CEQ published notice that it was rescinding the 2019 draft guidance on Feb. 19, 2021 and noted it will publish a separate notice regarding its review and update of the 2016 guidance.

President Biden’s week one EOs did not directly speak to the revised NEPA implementing regulations finalized by CEQ under the Trump administration. However, the January 27 Climate Crisis EO did instruct CEQ and OMB to “take steps … to ensure that Federal infrastructure investment reduces climate pollution, and to require that Federal permitting decisions consider the effects of greenhouse gas emissions and climate change” as well as “identify steps that can be taken, consistent with applicable law, to accelerate the deployment of clean energy and transmission projects in an environmentally stable manner.” (Sec. 213) The administration is likely to review CEQ’s NEPA regulations and the agency environmental review processes in response to these instructions.

Under former President Trump, DOI consistently rolled back regulations designed to protect public lands and waters. The administration also opened up previously protected public lands and waters for oil and gas development, including shrinking and weakening protections for national monuments. In both the Public Health and the Environment EO and the Climate Crisis EO, President Biden prioritized reversing these actions while setting proactive goals and creating mechanisms to conserve water in the west and make national fisheries more resilient to the impacts of climate change.

National Monuments

In President Biden’s EO on Public Health and the Environment, he prioritized reviewing former President Trump’s contentious reductions of Bears Ears National Monument and Grand Staircase-Escalante National Monument. An internal report from then-Secretary Zinke revealed these reductions were designed to promote extractive uses within the monuments, including logging, mining, and hunting. In the EO, President Biden established a policy to “restore and expand our national treasures and monuments,” and ordered the Secretary of the Interior to determine whether to restore the boundaries of Bears Ears and Grand Staircase-Escalante to their pre-January 20, 2017 boundaries within 60 days of the order (by March 21, 2021).

The EO also prioritized restoring conditions in the Northeast Canyons and Seamounts Marine National Monument, created by former President Obama. In 2020, Former President Trump lifted the moratorium on commercial fishing in the monument. President Biden has now ordered the Secretary of the Interior to review that proclamation, and determine whether to reinstate the fishing moratorium within 60 days (by March 21, 2021). 

Finally, President Biden revoked EO 13792, which former President Trump issued in 2017. Under the order, Trump required the Secretary of the Interior to review all monuments larger than 100,000 acres, including marine monuments, to ensure they “appropriately balance the protection of landmarks, structures, and objects against the appropriate use of Federal lands and the effects on surrounding lands and communities.” The order also established a policy that “monument designations . . . may also create barriers to achieving energy independence, restrict public access to and use of Federal lands, burden State, tribal, and local governments, and otherwise curtail economic growth.” Revoking and replacing this policy gives President Biden a new platform from which to announce his ambitious conservation goals.

Conservation of Water and Ocean Resources

In the Climate Crisis EO, Biden includes the “conserv[ation of] our lands, waters, and biodiversity” as part of the government-wide approach to combat the climate crisis. In the EO, water conservation and protections form an essential part of the National Climate Task Force’s mission (Sec. 203); the federal government’s procurement policy (Sec. 204); the management of offshore energy production (Sec. 207, 208); agencies’ climate action plans (Sec. 211); the creation of the Civilian Climate Corps (Sec. 214, 215); the work of the Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization (Sec. 218); and the Justice40 Initiative (Sec. 223). 

In addition to these broad policy commitments, the EO sets the ambitious goal of “conserving at least 30 % of our lands and waters by 2030,” commonly known as the “30×30” plan. The goal is based on scientific research finding that 30% of the Earth must be formally protected by 2030 in order to stay below a 1.5C rise in average global temperature, preserve biodiversity, and increase rates of natural carbon storage. Currently, 12% of land within the US and its territories and 26% of US ocean waters are protected at levels consistent with the 30×30 plan. 

The EO tasks the Secretaries of the Interior, Agriculture, and Commerce with specific information-gathering and reporting tasks to kick off the administration’s 30×30 goal. First, the EO tasks the Secretary of the Interior to submit a report to the Task Force within 90 days (by April 27, 2021) recommending steps to achieve the 30×30 goal, including proposing guidelines for determining when lands or waters qualify for protection, and mechanisms to measure progress. In doing so, the Secretary must solicit input from non-federal partners, including State, local, Tribal, and territorial officials, agricultural and forest landowners, and fishermen on how to “encourage broad participation” in achieving this goal. 

Second, the EO tasks the Secretary of Agriculture to, within 60 days (by March 28, 2021), start a process to collect input from non-federal stakeholders on how to “best use” the agency’s  programs, funding and financing capacities, and how to encourage the voluntary adoption of climate-smart agricultural and forestry practices that decrease wildfire risk, sequester carbon, and source sustainable bioproducts and fuels. Within 90 days (by April 27, 2021) the Secretary must submit a report to the Task Force with recommendations based on that input for a national agricultural and forest climate strategy.

Third, the EO tasks the Secretary of Commerce (through the Administration of the National Oceanic and Atmospheric Administration (NOAA)) with a similar information-gathering process, specifically seeking input from “fishermen, regional ocean councils, fishery management councils, [and] scientists” on how to make fisheries and protected ocean resources more resilient to climate change. This includes changes in management and conservation measures, and improvements in science, monitoring, and cooperative research. The Secretary must also begin this process within 60 days (by March 28, 2021).

In service of the 30×30 goal, President Biden also revoked two Trump-era presidential memos regarding the supply and distribution of water in the western US The first memo (issued October 19, 2018) accelerated the environmental review of major water infrastructure projects in California and changes to dams, reservoirs, irrigation projects, and other facilities along the Columbia River. The second memo (issued February 26, 2020) announced a new ROD delivering additional irrigation water to farms south of California’s ecologically sensitive Sacramento-San Joaquin River Delta, and directed the Secretaries of the Interior and Commerce to supplement those changes “to make deliveries of water more reliable and bountiful.” Revoking these memos signals President Biden’s repudiation of reckless extraction in water-scarce areas and an increased focus on the long-term conservation of scarce water resources in the west.

In the Public Health and the Environment order, President Biden committed his administration as a matter of policy “to bolster resilience to the impacts of climate change.” In that order, Biden revokes three Trump-era executive orders, and in doing so, effectively reinstates three Obama-era resiliency standards. First, Biden revoked Trump’s EO 13783 (Promoting Energy Independence and Economic Growth), which in turn had revoked former President Obama’s EO 13653 (Preparing the US for the Impacts of Climate Change). By effectively reinstating EO 13653, President Biden reinstates several Obama-era policies and practices promoting preparedness and resilience through stakeholder engagement, risk-informed decision making, adaptive learning, and preparedness planning.

Second, Biden revoked most sections within Trump’s EO 13834 (Efficient Federal Operations), thus reinstating Obama’s EO 13693 (Planning for Federal Sustainability in the Next Decade). In doing so, President Biden recommitted federal agencies to aggressively pursue “life-cycle cost-effective” reductions in energy use and potable water consumption, invest in on site renewable energy, reduce federal fleet-wide per-mile greenhouse gas emissions, and generally improve building efficiency, performance, and management. With respect to resilience, the Obama-era order also required federal agencies to account for potential costs and risks to agency operations and facilities posed by climate change.

Third, Biden revoked Trump’s EO 13807 (Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects), reinstating Obama’s EO 13690, which established a Federal Flood Risk Management Standard. The standard applies not only to federal agencies, but to all federally funded infrastructure, and requires that infrastructure be built to withstand more severe flooding due to climate change and to avoid development in floodplains where possible.

In the Climate Crisis EO, President Biden then requires all federal agencies to create a climate action plan to “bolster adaptation and increase resilience to the impacts of climate change” of the agency’s facilities and operations. Each plan must address at minimum the agency’s climate vulnerabilities, plans to use the power of procurement to increase energy and water efficiency, and address potential supply chain disruptions. Those draft action plans must be submitted to the Task Force and Federal Chief Sustainability Officer within 120 days (by May 27, 2021). Those plans will be public and posted on each agency’s website.

In addition to the climate action plan, the president tasks specific agencies with improving the public’s access to climate forecasting and risk data. NOAA, FEMA, and OSTP must provide the Task Force with a report on how to “expand and improve climate forecast capabilities and information products for the public.” Furthermore, the chair and vice-chair of the Federal Geographic Data Committee (the Secretary of the Interior and OMB’s Deputy Director for Management respectively) must provide the Task Force with a report on how to develop a “consolidated Federal geographic mapping service” that could help local, tribal, and state governments plan their climate and resilience activities. However, the order does not include a deadline for either mandate. 

President Biden has made consideration of climate change an essential job function for all agency heads, not just those traditionally connected to environmental regulation. This extends to financial risk management as well. His campaign platform included a commitment to “[r]equiring public companies to disclose climate risks and the greenhouse gas emissions in their operations and supply chains,” and he has frequently talked about a “whole of government” approach to climate change management. 

In his January 27 Climate Crisis EO President Biden instructed the Secretary of the Treasury to participate in international fora designed to manage climate-related financial risks and use the US vote to promote the goals of the Paris Agreement (Sec. 102(g)).  President Biden instructs Treasury, State, and Energy to “identify steps through which the United States can promote ending international financing of carbon-intensive fossil fuel-based energy while simultaneously advancing sustainable development and a green recovery, in consultation with the Assistant to the President for National Security Affairs.” (Sec. 102(h)) (See our more detailed discussion below about how the week one EOs foster climate action abroad.) President Biden also makes it the policy of the federal government to “drive assessment, disclosure, and mitigation of climate pollution and climate-related risks in every sector of our economy, marshaling the creativity, courage, and capital necessary to make our Nation resilient in the face of this threat.” (Sec. 201)

The federal government cannot control private financial flows in the markets, but positions taken by financial regulators can encourage more climate-conscious decision making. Most of the authority to require better climate-related disclosures and risk management in the financial sector lies with independent agencies. For example, the Securities and Exchange Commission (SEC) sets and enforces disclosure requirements for public companies and the Federal Reserve manages system-wide financial risk. The Commodity Futures Trading Commission (CFTC) regulates the derivatives markets. These and other federal financial regulators are expected to more aggressively address potential risks from climate change at the individual company level as well as for the financial system as a whole in the coming years. (See our recent paper on this new era in climate-related disclosure and financial risk management for more detail on expected changes.) The Biden administration is already impacting the direction of independent financial regulators with its choice in leadership. 

During the Trump administration, there was a distinct split among financial regulators as to how to address concerns about financial risks related to climate change. The SEC faced steadily growing pressure to require more expansive and detailed disclosures about corporate climate-related risks but resisted this pressure to act while the Commission was controlled by GOP commissioners. We are already seeing a new focus at the SEC as the balance at the Commission shifts to Democratic control. The two Democratic commissioners on the SEC have both voiced strong support for action on climate change risks and the Commission is expected to consider such action once Biden’s nominee for SEC Chair is confirmed. 

Acting Chair Lee is already taking steps to prepare by adding a climate-focused position to her team. On February 24, 2021, SEC Acting Chair Allison Lee announced the SEC would update its 2010 guidance on climate-related disclosures and begin a process for “developing a more comprehensive framework that produces consistent, comparable, and reliable climate-related disclosures.” Acting Chair Lee has also directed the SEC’s Division of Corporate Finance to “enhance its focus on climate-related disclosure in public company filings.” (See what that could mean for how the division interacts with companies on their filings in this piece by Samantha Ross on the subject.) These announcements indicate the changing focus at the SEC is already leading to quick action to require better incorporation of climate change information into corporate and financial risk management.

Meanwhile, the Federal Reserve has quietly researched climate-related risks for years and has recently begun to act on that research by including climate change in its Financial Stability Report for the first time in 2020, joining the Network of Central Bands and Supervisors for the Greening of the Financial System (NGFS), and announcing a new Supervision Climate Committee. CFTC Market Risk Advisory Committee commissioned a report on climate-related risk to the financial system released in 2020 that looked at risks and possible steps to address them across regulatory bodies. The Commissioner who sponsored the committee responsible for that report is now the Acting Chair of the CFTC and expected to increase the Commission’s focus on climate-related risks.

While the Federal Reserve and the CFTC took active steps to understand and begin to address climate-related risks and the SEC largely sat on the sidelines during the Trump administration, federal actors under more direct policy control from the White House tried to diminish efforts to consider climate change in investments and lending decisions. The Department of Labor’s Employee Benefits Security Administration (EBSA) finalized a rule on investment duties that made incorporating climate change and other environmental, social, and governance topics into Employee Retirement Income Security Act (ERISA) plan investment decisions more challenging. The Office of the Comptroller of the Currency (OCC) also finalized a rule in the last couple of weeks of the Trump presidency that targeted climate-related policies at banks. The OCC rule has since been placed on hold pending review by the new Comptroller of the Currency and the EBSA rule will likely be reviewed by the new leadership at the Department of Labor. 

(See Hana Vizcarra’s February 17 financial disclosure and risk management update for a more detailed explanation of what to expect from financial regulators.) 

The directives in Sec. 102 of the Climate Crisis EO indicate support for a more cohesive approach to addressing the risks of climate change to the financial system. Treasury Secretary Yellen appears poised to help push this agenda through her rule at Treasury. She has announced plans to create a climate “hub” at Treasury to review financial stability risks and tax policy incentives related to climate change. How the departments of treasury and state engage with the Paris Agreement conferences and other international bodies is discussed in the next section.

In the Climate Crisis EO, President Biden sends a clear message that “it is the policy of my Administration that climate considerations shall be an essential element of United States foreign policy and national security.” Throughout his preliminary orders, he prioritized recommitting the US to the Paris Climate Agreement and the Kigali Amendment to the Montreal Protocol, establishing international climate finance mechanisms to help developing countries mitigate and adapt to the impacts of climate change, and assessing both the domestic and international security threats posed by climate change.

Recommitment to International Climate Goals

On his first day in office, President Biden pledged to rejoin the Paris Climate Agreement, though it took 30 days (until February 19, 2021) for the US to formally reenter the agreement. President Trump’s withdrawal from the Paris Agreement was finalized on November 4, 2020. As the second largest emitter of greenhouse gases in the world, and the largest historical emitter, President Biden’s recommitment lends essential momentum and credence to the Agreement process. 

In the Climate Crisis EO, Biden announces that “the United States will immediately begin the process of developing its nationally determined contribution (NDC) under the Paris Agreement, in hopes of submitting its NDC before the newly created Leaders’ Climate Summit (discussed below). The previous US NDC committed to reducing greenhouse gas emissions 26-28% below 2005 levels by 2025. Under the Paris Agreement, all countries must strengthen their NDCs every five years. The Biden administration has not stated what their NDC will be, but Gina McCarthy, the national climate advisor, stated that “we’re going to have to [] develop the most aggressive NDC that we can.”

Under the order, President Biden also commits to reconvening the Major Economies Forum on Energy and Climate, which former President Obama launched in 2009, with the last meeting held in 2015. The Forum brings together 17 major economies, the COP President, and representatives from the United Nations. The Forum will begin with President Biden hosting an “early Leaders’ Climate Summit aimed at raising climate ambition and making a positive contribution to the 26th United Nations Climate Change Conference of the Parties (COP26) and beyond.” The Summit, which will be held on Earth Day (April 22, 2021), will focus on “green recovery efforts, initiatives to advance the clean energy transition, sectoral decarbonization, and alignment of financial flows with the objectives of the Paris Agreement.”

In the same EO, President Biden also directed the State Department to prepare a transmittal package seeking the Senate’s advice and consent on the Kigali Amendment to the Montreal Protocol within 60 days (by March 28, 2021). The Kigali Amendment seeks to phase out the use of HFCs, to 15 % of 2011-2013 levels by 2036. Ratifying the Kigali Amendment would both protect the ozone layer and could avoid up to 0.5 degree Celsius of global temperature rise by 2100. While ratifying the Amendment would require a two-thirds majority in the Senate, in 2018 thirteen Republican senators sent a letter to former President Trump expressing support for ratifying the amendment, citing the economic benefits to US industry. Even without ratifying the amendment, Congress took substantial steps towards reducing HFCs, passing a year-end omnibus bill on December 22, 2020 agreeing to phase down the production and consumption of HFCs 85% by 2036.

In service of these goals, the order also outlines John Kerry’s priorities as the special presidential envoy for climate, including “promote innovative approaches, including international multi-stakeholder initiatives,” to “elevate the issue of climate change and underscore the commitment [the Biden] administration will make toward addressing it.” 

Climate Finance

The Climate Crisis EO instructs the secretaries of state and treasury to coordinate with John Kerry to create a Climate Finance Plan, including multilateral and bilateral diplomacy channels and institutions, to “assist developing countries in implementing ambitious emissions reduction measures, protecting critical ecosystems, building resilience against the impacts of climate change, and promoting the flow of capital toward climate-aligned investments and away from high-carbon investments.” The Secretaries must submit the Climate Finance Plan to the president within 90 days (by April 27, 2021). The administration’s emphasis on facilitating global financial investments in climate change mitigation and adaptation is consistent with the administration’s broader focus on “mov[ing] the marketplace” in order to harden the administration’s actions against future political pendulum swings.

To reach these broader global finance goals, the order issues specific guidance to the secretaries of the treasury, state, and energy departments on engaging effectively on the international stage. The order instructs the secretary of treasury to focus on managing climate-related financial risks and promoting the goals of the Paris Agreement; and to develop a plan to promote the protection of the Amazon rainforest and other critical ecosystems and carbon sinks, including the use of market-based mechanisms. The order also instructs the secretaries of the state, treasury, and energy departments to focus on “ending international financing of carbon-intensive fossil fuel-based energy” and advance “sustainable development and a green recovery.” The secretary of energy should also identify ways to “drive innovation and deployment of clean energy technologies.” There are no deadlines or deliverables attached to this guidance.

Renewed Focus on Global Security and Climate

Finally, the Climate Crisis EO sets a series of concrete reporting deadlines to improve the federal government’s understanding of and response to climate change-related risks to national and global security. First, the order requires all federal agencies that “engage in extensive international work” to submit within 90 days (April 27, 2021) “strategies and implementation plans for integrating climate considerations into their international work” including climate impacts on agency-managed infrastructure, the management of climate impacts, and international partner engagement.

The order also establishes a series of deadlines for domestic national security officials to evaluate and integrate climate change-related risks into broader economic and national security planning. In the next 120 days (by May 27, 2021), the director of national intelligence must prepare a National Intelligence Estimate on the national and economic security impacts of climate change. Also in the next 120 days, the secretary of defense, among others, must submit a Climate Risk Analysis that assesses the security implications of climate change that can be incorporated into modeling, simulation, war-gaming, and other analyses. The secretary of defense and the joint chiefs must then consider the Climate Risk Analysis and climate risk generally in “developing the National Defense Strategy, Defense Planning Guidance, Chairman’s Risk Assessment, and other relevant strategy, planning, and programming documents and processes.”  Finally, the secretary of homeland security must “consider the implications of climate change in the Arctic, along our Nation’s borders, and to National Critical Functions.” While there is no deadline for the secretary’s first assessment, they must provide the president with annual updates beginning in January 2022.

The Climate Crisis EO also reinstates an Obama-era memorandum, reviving the Climate and National Security Working Group, co-chaired by the assistant to the president for national security affairs (APNSA) and the assistant to the president for science and technology. Former President Trump revoked the memorandum (Climate Change and National Security) in his EO 13783 (Promoting Energy Independence and Economic Growth). By restoring the memorandum, President Biden reinstates “the policy of the Federal Government to ensure that the current impacts of climate change, and those anticipated in the coming decades, be identified and considered in the development and implementation of relevant national security doctrine, policies, and plans.” The memo also includes mandates for agencies “to ensure that climate change-related impacts are fully considered in the development of national security doctrine, policies, and plans.”

Finally, on February 4, 2021, President Biden issued the Executive Order on Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration. The order requires that the APNSA, in consultation with the secretaries of state, defense, homeland security, and the USAID administrator, and the director of national intelligence to prepare and submit a report on climate change and its impact on migration, including forced migration, internal displacement, and planned relocation. That report must include options for the protection and resettlement of people displaced directly or indirectly by climate change. This report must be submitted within 180 days (by Aug. 3, 2021).