US ELECTIONS: Executive, agency actions may offer viable pathway for Biden

Facing a high likelihood of a divided Congress when he assumes office, President-elect Joe Biden is charting a course that will rely on aggressive regulatory actions, executive orders, and incremental legislation to curb global warming and address other energy and environmental issues.

While Biden has secured the more than the 270 electoral votes needed to become the next president, the US Congress likely will remain under split party control, dimming Democrats' hopes for enacting major climate change and energy legislation in the next two years even with an ally in the White House. Republicans have a good chance of maintaining control of the Senate, while Democrats are projected to hold their majority in the House of Representatives.

A split Congress would weaken Democrats' ability to pass more sweeping measures in the next two years to curb climate-warming greenhouse gases, including bills to place a price on carbon dioxide emissions or to establish a national clean energy standard.

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But Biden could still make progress on reducing the nation's emissions through federal agency and executive actions, continuing the recent trend of governing through executive orders rather than congressional action, according to industry observers. Biden has pledged to sign a series of executive orders to reinstate environmental regulations rolled back by the Trump administration.

"The way the Trump administration modified regulations that were under challenge when the Obama administration left office is an easy way to reorient the priorities of policy without necessarily taking substantive action on setting limits on greenhouse gases," said Christine Tezak, managing director of ClearView Energy Partners, during a recent webinar.

In a divided government, the "likelihood of comprehensive climate legislation is greatly diminished," but the administration could seek to address greenhouse gas emissions through the US Environmental Protection Agency, said Cliff Rothenstein, government affairs adviser with K&L Gates.

Initially, the Biden administration could issue a regulatory freeze, giving the new political team time to review current and pending regulations, Rothenstein said. And he expects EPA to "very aggressively start a robust enforcement initiative to move forward on enforcement."

Biden could also rescind some of Trump's executive orders and may issue his own pertaining to environmental justice, clean energy and the social cost of carbon, Rothenstein said.

Given Biden's focus on combating climate change during the campaign, industry observers said the president-elect could also make headway on the international level, promoting US leadership in the global effort to reduce emissions. Trump officially withdrew the nation from the Paris Agreement on climate change, and Biden has committed to rejoining the accord on his first day in office.

"[Biden] will not only recommit the United States to the Paris Agreement on climate change — he will go much further than that," according to the president-elect's transition website. "He is working to lead an effort to get every major country to ramp up the ambition of their domestic climate targets."

Cooperation with Congress

Senate Republicans over the past two years have beaten back aggressive climate legislation from the Democrat-majority House. That trend is likely to continue even with Biden in the White House.

"Given the fact that Biden is probably not going to have a compliant Senate to work with, don't look for him getting policy done through a reconciliation bill or even an ambitious climate bill," said Eric Washburn, who served as legislative director for former Senate Majority Leader Tom Daschle and is a former Democratic staff director for the Senate Environment and Public Works Committee.

In a divided Congress, "we would expect things for clean and advanced energy to be relatively small compared to what they might be under... full [Democratic] control," Leah Rubin Shen, policy director for the Advanced Energy Economy, said during an Oct. 21 webinar. "There might be some appetite for movement on tax credits, but that's sort of the great white whale of federal policy."

Areas for compromise do exist, however. With Democrats in charge of the House and executive branch, a GOP-majority Senate may have a harder time resisting calls for climate action.

"The House is going to continue to pass aggressive things, like they did in the past two years, and put the pressure on the Senate... especially when there's someone in the White House who also wants to get stuff done," League of Conservation Voters President Gene Karpinski predicted.

Coronavirus relief

Congress is expected to consider coronavirus relief and recovery legislation in 2021 that could offer targeted support for clean energy development, policy experts say. An infrastructure bill could be another vehicle for Biden's clean energy agenda.

"There will be an enormous amount of energy put toward passing stimulus/recovery legislation that will include clean energy and climate incentives, among other things," said Tracy Nagelbush Tolk, principal for governmental issues at Van Ness Feldman. Potential energy provisions could include tax incentives for clean energy technologies and additional funding for the Low Income Home Energy Assistance Program to help families pay their utility bills, Tolk said.

Beyond economic relief bills, Tolk said energy and environmental measures will continue to move in smaller packages attached to other legislative initiatives, including regular defense spending and water resources appropriations bills.

Republicans and Democrats could also work together on clean energy research funding. Lawmakers from both parties have joined forces in recent years to boost appropriations for the Department of Energy's research programs. And in 2020, the Senate Energy and Natural Resources Committee introduced the sweeping American Energy Innovation Act, while House Democrats passed their own energy innovation bill in September.

Biden will also have to rely on the Senate to confirm his picks to head federal agencies. But if Republicans keep their Senate majority, they could try to slow down or block confirmation of Biden's nominees in an effort to thwart his climate agenda.

The president-elect "needs to appoint the Anthony Fauci of the Department of Energy and EPA," former EPA Administrator Gina McCarthy said during a recent post-election conference call, referencing the current director of the National Institute of Allergy and Infectious Diseases. "We just need somebody who follows the science, who understands the law."