Biden Administration Takes Early Action On Climate Change – Environment

In its first week in office, the Biden Administration took
initial steps to meet its ambitious goals to address climate
change. These steps are contained in a January 20, 2021, executive
order (the “Day One Order”), a January 20 notice
regarding the Paris Agreement (the “Paris Notice”), and a
January 27 executive order (the “January 27 Order”).

Day One Order

In the Day One Order, the Administration laid the
groundwork of its climate focus by setting policies of, among other
things, reducing greenhouse gas emissions and bolstering resilience
to the impacts of climate change. To that end, each agency and
department is instructed to consider proposing rules suspending,
revising, or rescinding any agency action taken during the prior
administration inconsistent with the policies. Rules specifically
identified for review include rules addressing methane emissions
from the oil and gas sector and fuel economy standards. It also
revokes the permit for the Keystone XL pipeline.

Paris Notice

The Biden Administration also issued a notice that it was rejoining the Paris
Agreement. Since the Paris Agreement is not a formal treaty, no
legislative action is required. The Agreement sets a goal of a 50%
reduction from 2005 greenhouse gas emissions by 2030 and “net
zero” greenhouse gas emissions by 2050. To meet these goals,
each country sets its own “National Determined
Contributions” (“NDC”). The Biden Administration has
instructed departments and agencies to immediately begin
development of a United States NDC in advance of the November Paris
Agreement meeting.

January 27 Order

The January 27 Order formally designates
Biden’s climate campaign promises as goals of the
Administration: net-zero carbon emissions by 2050 and carbon
pollution-free power sector by 2035.

To implement these actions and orders, on the international
level, former Secretary of State John Kerry has been appointed
Special Presidential Envoy for Climate. He has been tasked, along
with the Secretary of State and the Secretary of the Treasury, with
developing a climate finance plan to assist developing countries in
addressing climate change. The January 27 Order also directs the
Secretary of State to prepare a package to present the Kigali
Amendment to the Montreal Protocol to the Senate. Although the
United States has signed the amendment, it has not yet been
ratified by the Senate. It would require the phase-out of the
production and consumption of hydrofluorocarbons, which were
developed to replace ozone depleting substances.

The January 27 Order also prioritizes climate change
considerations as central to the United States’ national
security and tasks national security and defense leaders to
develop: (i) a National Intelligence Estimate on the national and
economic security impacts of climate change; and (ii) a Climate
Risk Analysis assessing the security implications of climate
change.

Former Environmental Protection Agency (“EPA”)
Administrator Gina McCarthy has been appointed National Climate
Advisor and will head the White House Office of Domestic Policy.
She will also head the National Climate Task Force, which will
include twenty-one cabinet secretaries and other senior executive
branch leaders. The Task Force is tasked with facilitating and
deploying a Government-wide approach to combat climate change. The
January 27 Order also instructs the Council on Environmental
Quality (“CEQ”) and the Office of Budget and Management
to require that federal permitting decisions consider the impacts
of climate change, which may require changes to the recently
revised CEQ NEPA regulations.

The January 27 Order directs the National Climate Advisor and
the Climate Task Force to develop a strategy to align the
government procurement process with climate change goals. This
includes purchasing clean and zero-emission vehicles for federal,
state and local vehicle fleets, including the United States Postal
Service. In combination with the plan to revise fuel economy
standards, these policies have the potential to radically transform
the automobile industry, as evidenced by General Motors’ recent
announcement that it will go “all electric” by 2035.

The energy industry also faces potential transformation. The
January 27 Order pauses new oil and natural gas leases on public
lands and offshore waters, sets a goal of doubling offshore wind
electricity production by 2030 and directs that any fossil fuel
subsidies be eliminated from any budget requests by 2022. These
developments are discussed in further detail in Jones Day’s
recent Alert. The prospects for regulation of
greenhouse gas emissions from coal-fired power plants in light of
the recent D.C. Circuit decision striking down the 2019 Affordable Clean Energy
Rule are discussed elsewhere in this edition of The Climate
Report.

Two overriding focuses of the January 27 Order are creating jobs
and environmental justice. It creates several task forces to work
with communities that are disproportionately impacted by climate
change as well as communities impacted by the shift from
traditional energy sources. Forty percent of the overall benefits
of any spending are earmarked for disadvantaged communities. The
Department of Justice and the EPA are tasked with working together
to develop a comprehensive environmental justice enforcement
strategy, including the possible renaming of the Environment and
Natural Resources Division as the Environmental Justice and Natural
Resources Division and directing the Environmental Protection
Agency to “strengthen enforcement of environmental violations
with disproportionate impact on underserved communities.”

These early climate change goals set by the Biden Administration
have the potential to impact many different aspects of the economy.
Subsequent executive actions in line with these goals, including
potential regulations, will almost certainly face litigation
challenges, and the ability to implement the goals may be hampered
without additional legislation or funding from Congress.

Originally published February 2021

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