Democrats now control the White House, Senate, and House of Representatives for the first time in a decade, albeit with razor thin Congressional majorities. The last time, in the 111th Congress (2009-2011), House Democrats passed a carbon cap and trade bill, but it died a quiet death in the Senate after failing to muster the 60 votes needed to overcome a filibuster threat.
Since then, neither the Senate nor the House has come close to passing a major climate bill despite strong majority support among Americans for climate action. Which is not to say that there’s real potential for legislative action on a complete original “Green New Deal.”
Still, things are likely to change with the newly seated Democratic majorities. They will likely still have to contend with the same filibuster threat that felled their climate bill in 2009. President Biden has proposed an ambitious climate plan, but his administration’s progress on legislation will be encumbered from the start by the need to undo the Trump administration environmental regulatory rollbacks.
It’s a long-held Washington tradition to consider a first-100-days-in-office marker, something of a throwback to gentler times when newly seated presidents were awarded a “honeymoon” period. No telling what lies ahead given the current political mayhem and the context of a global pandemic, an impeachment trial, social inequity unrest, slowing economic indicators, and the aftermath of the January 6 insurrection and breach of the U.S. Capitol.
That said, an outlook for the Democratically controlled White House and Congress on climate change in Biden’s first 100 days:
With its day-one start to rejoin the Paris Climate Agreement, the incoming administration will also need to undo scores of Trump environmental regulatory rule-makings and rollbacks. Some of those steps could involve painstaking years-long processes of developing and proposing new rules and then submitting them for public comment prior to adopting final rules. Court challenges also would likely delay those actions in a number of cases.
But a major workaround involves the Congressional Review Act (CRA), reviewed in depth in this recent Yale Climate Connections post by Jan Ellen Spiegel.
One key CRA target for incoming Democrats will be the so-called ‘transparency rule’ – AKA “secret science” rule – finalized January 5, 15 days before the Biden/Harris inauguration. The concept, first proposed by the tobacco industry in the 1990s, requires that EPA give more weight to studies for which data are fully public than to those including confidential data. Many key studies underpinning some of the most important clean air and water regulations have relied on individual subjects’ confidential medical data not disclosed in the rulemaking. Critics fear the rule as adopted under the Trump EPA would weaken EPA’s ability to create new protections from harmful air pollutants.
Another potential CRA target is a new rule requiring that EPA cost-benefit analyses exclude what are called the “co-benefits” of incidentally reducing other pollutants. For example, an EPA regulation designed to curb mercury emissions would accelerate the phase-out of coal power plants, which in turn would reduce the emissions of many other harmful pollutants released by burning coal. The new rule, finalized in December 2020, would not allow EPA to include the potentially considerable health and economic co-benefits resulting from the reduction of other pollutants in a cost-benefit analysis of a proposed regulation; that restriction would make it much more difficult for the EPA to justify new pollutant regulations despite their potential net benefits to public health and the economy.
What can Congress do on climate change?
With the Executive branch having to undo or revise Trump administration rules, Congress will face a full and tight schedule for legislating on major climate change matters. Assuming the filibuster remains intact, significant legislation generally will require 60 votes (including at least 10 Republicans) to pass the evenly split Senate.
But there lies an important exception – budget reconciliation.
The Congressional Budget Act of 1974 established the budget reconciliation process, allowing for expedited consideration of certain tax and spending legislation without an option for a Senate filibuster. In 2017, congressional Republicans used the reconciliation process to pass a large tax cut bill, and Democrats used it in 2010 to pass the Affordable Care Act. There’s one catch: Congress can use the reconciliation process for only one spending and/or revenue bill per year, with a target date of April 15th to have the reconciliation bill ready for Senate floor consideration.
To qualify for inclusion in the budget reconciliation process, a bill must meet two main criteria. First, it must have 51 Senate votes (potentially including Vice President Kamala Harris as a tiebreaker) and a simple majority in the House, where Democrats hold a razor-thin majority. Second, under what’s known as “the Byrd Rule,” the Senate Parliamentarian must conclude that the bill primarily involves budget issues. Lacking that affirmative conclusion, the Congressional majority must vote to overrule the judgment in order to include it.
When it comes to climate change, a carbon tax or fee is the broadest policy that likely would fit the reconciliation rules. Rhode Island Democratic Senator Sheldon Whitehouse – a strong climate advocate who sits on both the Senate Finance and Budget Committees, both key to reconciliation and taxation bills – recently argued that carbon pricing would be an ideal candidate for the budget reconciliation process. But nothing is certain, given concerns that West Virginia Democratic Senator Joe Manchin, generally seen as the most conservative Senate Democrat, brought a halt to Senate action on the carbon cap and trade bill in a 2010 campaign ad.
So strong party-line votes are always a possibility on major climate change bills. But they’re not necessarily a given: Republican Senators Lisa Murkowski of Alaska, Mitt Romney of Utah, and Susan Collins of Maine each are considered potentially open to legislation on a carbon price.
About a dozen carbon tax bills were introduced in the last session of Congress. The Energy Innovation and Carbon Dividend Act, supported by the non-profit Citizens’ Climate Lobby, garnered by far the most support, with 86 cosponsors in the House, all but one Democrats. In the Senate, that same bill was co-sponsored by Arizona Republican Jeff Flake just before he retired in 2018.
Many climate advocates on and off Capitol Hill – including some in positions of influence in the Biden administration giving mixed messages – have written-off prospects for carbon pricing soon becoming law. But it could yet emerge as an option for inclusion in budget reconciliation if it’s judged to meet the Byrd Rule: Carbon pricing continues to have the support of most Democrats and some Republicans.
Other climate advocates, however, have shifted their focus away from carbon pricing toward a combination of standards, investment, and environmental justice. Investments in clean technologies, infrastructure, and research will likely be a major component of a reconciliation bill. Those would be consistent with the Byrd Rule and could garner substantial support. A reconciliation bill could also create a federal green bank to invest in clean energy infrastructure. On the environmental justice side, President Biden has pledged that nearly half of clean energy investments will be directed toward poor and minority communities that have borne the brunt of fossil fuel pollution.
A national clean energy standard (President Biden has proposed aiming for 100% clean electricity by 2035) would be more challenging to fit into reconciliation. Some experts, like Environmental Defense Fund economist Nathaniel Keohane, are skeptical that standards could meet the Byrd Rule given that they are generally more regulatory than budgetary in nature. However, a group of policy experts has proposed five ways in which a national clean energy standard could be given a significant budgetary component: for example, by creating a federal program to sell clean energy credits to electric utilities, along the lines of some approaches in previous measures included in past reconciliation packages.
It’s by no means a slam dunk, or as all-encompassing as a carbon price that could be applied to every sector of the economy. But it’s plausible that a majority in the Senate could support a national clean energy standard and that, if designed carefully to fit a proverbial square peg into a round hole, the Senate Parliamentarian could conclude that it satisfies the Byrd Rule.
As with carbon pricing, Manchin has voiced concerns about an ambitious clean energy standard, and he will be closely watched in the split Senate. In the end, regardless of what Manchin does, it’s conceivable that Republicans like Collins, Murkowski and Romney could instead provide deciding votes that determine which key climate bills are included in a budget reconciliation package in or even after Biden’s first 100 days.
The following is excerpted from a January 20 release from the incoming President and Vice President:
FOR IMMEDIATE RELEASE
January 20, 2021
FACT SHEET: LIST OF AGENCY ACTIONS FOR REVIEW
Actions Address the COVID-19 Pandemic, Provide Economic Relief, Tackle Climate Change, and Advance Racial Equity
Tackling Climate Change, Creating Good Union Jobs, and Advancing Environmental Justice
Rejoin the Paris Agreement on Climate Change
The president-elect will sign the instrument to rejoin the Paris Agreement. The instrument will be deposited with the United Nations today, and the United States will officially become a Party again 30 days later. The United States will be back in position to exercise global leadership in advancing the objectives of the Agreement.
Roll Back President Trump’s Environmental Actions in Order to Protect Public Health and the Environment and Restore Science
Today, President-elect Biden will sign an Executive Order that takes critical first steps to address the climate crisis, create good union jobs, and advance environmental justice, while reversing the previous administration’s harmful policies.
The order jumpstarts swift, initial action to tackle the climate crisis by:
- Directing all executive departments and agencies to immediately review and take appropriate action to address federal regulations and other executive actions taken during the last four years that were harmful to public health, damaging to the environment, unsupported by the best available science, or otherwise not in the national interest, including agency actions identified on the attached list;
- Directing agencies to consider revising vehicle fuel economy and emissions standards, methane emissions standards, and appliance and building efficiency standards to ensure that such standards cut pollution, save consumers money, and create good union jobs;
- Directing the Department of Interior to protect our nation’s treasures by reviewing the boundaries and conditions of the Grand Staircase-Escalante, Bears Ears, Northeast Canyons, and Seamounts Marine National Monuments and placing a temporary moratorium on all oil and natural gas leasing activities in the Arctic National Wildlife Refuge;
- Re-establishing the Interagency Working Group on the Social Cost of Greenhouse Gases (GHG) and directing the issuance of an interim social cost of GHG schedule to ensure that agencies account for the full costs of GHG emissions, including climate risk, environmental justice and intergenerational equity; and
- Revoking, revising, or replacing additional Executive Orders, Presidential Proclamations, Memoranda, and Permits signed over the past 4 years that do not serve the U.S. national interest, including revoking the Presidential permit granted to the Keystone XL pipeline.