Climate Reregulation: Three Months In


Posted on April 20th, 2021 by hillaryaidun

By Hillary Aidun

On January 20 of this year we launched the Climate Reregulation Tracker to follow the Biden-Harris administration’s progress in undoing its predecessor’s assault on climate change policy by reinstating, expanding and building upon previous climate actions. Three months into the new administration, what has been accomplished so far? Key priorities are addressed in the budget plan, but President Biden has also overseen an about-face in climate policy through executive action alone. This post provides a review.

Immediate Reversals

Even before taking office President Biden named a team of experienced policymakers dedicated to action on climate change, in a sharp departure from his predecessor. Then, as expected, President Biden moved swiftly to enact policy reversals that could be accomplished on Day One. On Inauguration Day he signed an Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, which revoked a number of executive orders and permits issued by President Trump. These include the permit for the Keystone XL Pipeline, an order to fast track approvals for oil and gas pipelines, and an order promoting offshore drilling. Additionally, the executive order articulated a new federal policy of listening to science, prioritizing environmental justice, improving public health, reducing greenhouse gas emissions, and bolstering climate resilience. The President also instructed agency heads to review and consider revising all regulations issued and agency actions taken during the Trump administration, in addition to highlighting specific rules that must be reconsidered. On Inauguration Day, the United States also began the process of rejoining the Paris Agreement. Read more here>>>

A Government-Wide Approach

While President Biden quickly reversed many of the Trump administration’s rollbacks, the Biden-Harris administration has made clear that it is not simply reverting to the Obama-Biden administration’s climate policies. In perhaps the most monumental shift thus far, the administration is embedding climate policies into the fabric of the executive branch, including into the missions of departments that were not previously treated as climate change agencies. One week after issuing his first climate executive order, on January 27 President Biden signed an Executive Order on Tackling the Climate Crisis at Home and Abroad, which established a number of new offices and set the stage for government-wide prioritization of climate change.

In the realm of foreign policy, the executive order builds on the appointment of former Secretary of State John Kerry to the new position of Special Presidential Envoy for Climate by declaring, among other things, that President Biden will host an early Leaders’ Climate Summit aimed at raising ambition ahead of the 26th UN Climate Change Conference of the Parties to be held in Glasgow in November. This week the administration is expected to announce the United States’ new “nationally determined contribution” to combatting global climate change, and it has been reported that the White House will announce a pledge to cut greenhouse gas pollution 50% or more by the end of the decade. With respect to domestic policy, the executive order establishes a new White House Office of Domestic Climate Policy, headed by former Environmental Protection Agency (EPA) Administrator Gina McCarthy, and a National Climate Task Force. It also instructs federal agencies to promote climate policies.

This all-of-government approach is already taking root. In March the Department of Agriculture began seeking input on designing “climate smart policies” on agriculture and forestry. In the same month Secretary of Defense Lloyd Austin directed Pentagon leadership to create a Climate Working Group to coordinate and track the Department of Defense’s climate actions, and the Securities Exchange Commission created a task force to police companies’ disclosure of climate risk. In April Interior Secretary Deb Haaland signed an order establishing a “Department-Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-Making Process,” which creates a Departmental Climate Task Force. President Biden’s budget plan also calls for a new Office of Climate Change and Health Equity within the Department of Health and Human Services.

The administration is also revamping the calculation of the social cost of greenhouse gases, a method of valuing the benefits of climate action and costs of climate inaction, reversing the previous administration’s position of downplaying the costs of climate impacts. In his January 20 executive order, President Biden reconvened the Interagency Working Group on the Social Cost of Greenhouse Gases, which his predecessor had disbanded. The working group is expected to announce new estimates for the social costs of carbon, methane, and nitrous oxide in January 2022. The ultimate figures will determine the way that climate impacts are accounted for in federal decision-making, and could make it more difficult to justify approving fossil fuel infrastructure and other projects that contribute to climate change—and therefore, have an effect on climate policy throughout the federal government. In the meantime, the Interagency Working Group on the Social Cost of Greenhouse Gases issued a technical document providing interim estimates, including a cost of $51 per metric ton of carbon dioxide, using estimates developed prior to 2017 and adjusting for inflation.

Furthermore, the Council on Environmental Quality has asked a federal district court to remand the revisions to National Environmental Policy Act (NEPA) regulations that were finalized by the Trump administration and then challenged by states and environmental groups last year. Those revisions—which could reduce agencies’ discretion to consider climate change impacts when conducting environmental review—will now likely be undone. Reinstating the previous requirements for environmental assessment would further ensure that climate change is accounted for in permitting and regulatory decisions across executive agencies. (Secretary Haaland has already instructed the Department of the Interior not to use the revised NEPA rules.)

Prioritizing Justice

Another hallmark of the Biden-Harris administration’s climate policy is that it centers environmental justice and a just transition. The January 27 executive order established an Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization and a White House Environmental Justice Interagency Council, in addition to a White House Environmental Justice Advisory Council within the EPA. The executive order also directs the EPA to strengthen civil rights protections and create a community notification program to monitor environmental pollution.

Secretary Haaland’s order on climate change, transparency, and integrity also reinforces that in conducting NEPA analysis, Department of the Interior offices and bureaus must consider social, cultural, and economic impacts in addition to environmental ones. The order further instructs Department staff to meet with potentially impacted Tribes and environmental justice communities early in the project planning process.

Moreover, the administration’s budget proposal would allocate 40% of climate benefits to historically overburdened communities, an approach that appears to be borrowed by New York’s Climate Leadership and Community Protection Act. Read more here >>>

EPA: Litigation Reversals and Rulemakings

Unsurprisingly, the administration has refused to defend its predecessor’s climate change policies that are tied up in litigation. In response to the president’s Inauguration Day executive order instructing agency heads to reconsider Trump-era rules, the government has reversed its litigation posture in a number of lawsuits.

On President Biden’s second day in office, the EPA asked the Department of Justice to seek stays in all cases challenging rules issued under the Trump administration pending review of those rules. These include two major regulatory rollbacks: the weakening of motor vehicle standards and the repeal of methane controls on the oil and natural gas sector. Regulating greenhouse gases from mobile and stationary sources is one of the executive branch’s primary tools for combatting climate change. The Biden administration is now poised to wield that tool to make a meaningful dent in greenhouse gas pollution.

  • Clean Car Standards: In perhaps the most consequential example of a reversal in litigation posture, the administration has requested that cases challenging the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule be stayed while the SAFE Rule is reconsidered. The 2020 SAFE Rule weakened motor vehicle emission standards that the Obama administration had issued in 2012, requiring only a 1.5% improvement in fuel efficiency and greenhouse gas controls per year—down from 5%. The SAFE Rule also revoked California’s authority to set its own auto emission standards that were more protective of public health and the climate than the federal standards. Given that transportation is the largest contributor to U.S. greenhouse gas emissions, strengthening motor vehicle standards will no doubt be a major component of the Biden administration’s climate policy. However, repealing and replacing the SAFE Rule will take time. Repealing an existing rule or issuing a new rule—or doing both—requires federal agencies to go through the notice-and-comment process of proposing a new rule, accepting and considering comments from the public, and then finalizing the rule. EPA Administrator Michael Regan has indicated that new motor vehicle standards will be proposed this July, and it is reasonable to assume that, as under President Obama, the federal standards will be harmonized with California’s rules. Administrator Regan also stated that the new rule would be meet “the urgency of the climate crisis.” This suggests that standards will go above and beyond the Obama-era regulations, which in any event only went out to model year 2025.In anticipation of stronger rules, several major automakers have announced they are transitioning to entirely electric fleets.

 

  • Methane Regulations: The administration has taken a similar approach to regulations on methane leakage from the oil and gas sector, a significant driver of climate change. In August 2020, the EPA rescinded the new source performance standards that the Obama administration had issued for methane emissions from facilities used in the production, processing, transmission, and storage of oil and natural gas. The 2020 rule was challenged by states and environmental groups last fall. This February the court granted the government’s motion to stay the case pending review of the rule. Once again, Administrator Regan has indicated that the EPA will exceed the Obama administration’s actions, explaining that the markets and technology have evolved to create room to act more ambitiously on regulating methane emissions.

 

  • Protections from Power Plants: Fossil fuel-fired power plants round out the trifecta of major sources of greenhouse gas emissions. In addition to strengthening standards on motor vehicles and the oil and gas sector, the third significant action that the EPA is likely to take on climate change is issuing a replacement for the Affordable Clean Energy (ACE) Rule, which the D.C. Circuit struck down last year. The ACE Rule purported to regulate greenhouse gas emissions from existing fossil fuel-fired power plants—the nation’s largest stationary source of such pollution—though in reality, by the EPA’s own admission, the rule would have reduced carbon pollution minimally, if at all. The ACE Rule was the Trump administration’s replacement for the 2015 Clean Power Plan, which would have reduced greenhouse gases by encouraging states to shift from coal and natural gas to renewable energy sources. Scholars tend to agree that the Biden Administration will not try to reinstate the Clean Power Plan, which never took effect because it was stayed by the Supreme Court pending litigation that was eventually mooted during the Trump administration, and therefore is seen to be legally vulnerable. Moreover, the fuel-switching that the Clean Power Plan was designed to achieve has already largely occurred through market forces alone. The Biden EPA can therefore be expected to take a different or modified approach to regulating existing power plants under the Clean Air Act.

 

The Trump administration’s attack on environmental protections was not, of course, confined to weakening greenhouse gas regulations. One of the Trump EPA’s most controversial rules was the so-called “Secret Science Rule,” which limited the types of scientific information that EPA could use in policymaking. That rule was challenged in January, and in February a court granted the Biden EPA’s request to strike down the rule. This decision ensures that, in issuing major climate change rules, the EPA will be able to rely on sound public health and environmental data.

Energy Policy

The Department of Energy is another major player in climate policy, given the significance of energy efficiency standards to U.S. greenhouse gas emissions and the need to swiftly transition to a clean-energy economy. In February the Department announced what amounted to a reregulation agenda, listing policy rollbacks by the Trump administration that would be reconsidered and likely reversed. Thus far the Department has moved to repeal one Trump-era rule, which made revisions to the “Process Rule.” The Biden-Harris administration is also signaling a clear commitment to renewable energy, including a proposed $2 billion plan to build a clean energy projects and workforce initiative at the Department of Energy.

The Department of Interior has also begun removing barriers to renewable energy development on federal lands and in federal waters. For example, the Department recently revoked a legal opinion on offshore wind that gave considerable weight to concerns about potential impacts to fishing, replacing it with an opinion suggesting that the Interior Secretary should “strike a rational balance” between various interests. The Department’s new Climate Task Force is also tasked with accelerating the permitting of renewable energy projects and associated transmission on federal lands and in the Outer Continental Shelf.

This support for renewable energy is coupled with a pause on oil and gas leasing on federal lands, rescissions of executive orders that shrunk federal monuments and opened them up to fossil fuel exploitation, revocations of secretarial orders to promote fossil fuel extraction on federal lands and in federal waters, and a mandate for the Interior Department’s Climate Task Force to reconsider federal oil and gas leasing policy. Additionally, in February the Bureau of Land Management requested that two cases challenging the approval of an oil and gas leasing program on the Coastal Plain of the Arctic National Wildlife Refuge be stayed pending review of the program, further signaling a shift in approach to oil and gas extraction.

A sea change is occurring in federal climate policy. President Biden moved quickly to enact policy reversals that could be accomplished right away—but the administration is also laying the groundwork for new rules to cut greenhouse gas pollution, work to scale up renewable energy, a commitment to create a government-wide approach to tackling climate change, and an effort to prioritize environmental justice and a just transition. While these policy shifts will take longer to bear fruit, they have the potential to create significant and lasting change.

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