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Biden may have to tread carefully with energy nominees, policy experts say

SNL Image

U.S. President-elect Joe Biden names his economic team at an event in Wilmington, Del., on Dec. 1, 2020.
Source: Alex Wong/Getty Images News via Getty Images

With Republicans potentially holding onto their U.S. Senate majority, Capitol Hill veterans say Democratic President-elect Joe Biden could have a hard time confirming nominees to lead energy- and environment-focused agencies, particularly given his sweeping climate change ambitions.

To fill his cabinet quickly, Biden must choose nominees carefully and avoid pressure from more progressive allies, the policy experts suggested.

"I think confirmations will be tough," said Eric Washburn, a consultant for Bracewell LLP's Policy Resolution Group and a former Democratic staff director for the Senate Environment and Public Works Committee. "[Biden] has come out with a very progressive climate agenda ... and I think that's got the attention of a lot of Republicans [in Congress] who are still reluctant to embrace major efforts to take on climate change."

Biden has called for decarbonizing the U.S. power sector by 2035 and achieving net-zero emissions economywide by 2050. Much of that work will likely fall to federal agencies, including the U.S. Environmental Protection Agency, to get around resistance from congressional Republicans, who stand a strong chance of keeping their Senate majority following early January runoff races for Georgia's two Senate seats.

Sources say Biden's top candidates to lead the EPA include California Air Resources Board Chair Mary Nichols and Heather McTeer Toney, who served as EPA's Region 4 administrator under former President Barack Obama. Nichols, who is in charge of crafting California's regulations to end the sale of gasoline-powered passenger vehicles by 2035, frequently clashed with President Donald Trump over his efforts to roll back national automobile emissions standards and end California's waiver to form its own tougher clean car rules.

As a result, an EPA candidate such as Nichols "might have a tough time making it through confirmation in a Republican Senate," Washburn said during an interview.

That same dynamic could apply to agencies outside of the EPA and Department of Energy, with Biden looking to apply a climate and environmental justice lens across agencies, said Nick Choate, a senior policy advisor for Venable LLP who previously served as deputy legislative director for former U.S. Sen. Claire McCaskill, D-Mo. That climate focus could extend to financial agencies such as the U.S. Securities and Exchange Commission, which under Biden could allow more shareholder measures and force more disclosures related to companies' climate impacts.

"If Republicans hold the Senate, and that seems likely, it's going to come down to what administrative nominees can get through the Senate," Choate said during a Nov. 12 webinar hosted by Venable. "And when you're talking the financial regulators, I would expect [climate] issues to be brought up during confirmation hearings and [for] Republican senators, in particular, trying to extract commitments from Biden's nominees on some of these things, particularly as to what they're not willing to do."

In general, a Republican Senate majority will be "a limiting factor" on Biden's plans to use financial agencies to accomplish his climate goals, Choate concluded.

Biden's Senate experience could be key

But other policy experts anticipate a less rancorous political environment in the new Congress that could allow Biden to fill cabinet positions with relative ease. With Biden serving in the Senate for over 35 years, some see greater collaboration between the White House and Congress.

"I'm optimistic that they will not just try to hold everything up," said Ben Longstreth, senior attorney and deputy director for the Natural Resources Defense Council's federal policy group and climate and clean energy program. "I hope that there is going to be some opportunity for some kind of reset in the relationship."

In addition, Longstreth said Biden was one of the more moderate Democratic presidential candidates on climate policy, foregoing calls from other contestants to ban hydraulic fracturing nationwide and exclude nuclear power and carbon capture from the nation's power sector. "He was not a bomb-thrower, and I think he will not want to nominate people who are viewed that way," Longstreth concluded.

Some of Biden's reported contenders to lead the DOE have already gone through the Senate confirmation process for other DOE positions during past administrations. Those potential nominees include Liz Sherwood-Randall, who served as Deputy Secretary of Energy under former President Barack Obama, and Arun Majumdar, whom the Senate confirmed as director of the Advanced Research Projects Agency-Energy in 2009.

For Energy Secretary, Biden is also said to be considering Washington Gov. Jay Inslee, former Michigan Gov. Jennifer Granholm, and New York State Energy Research and Development Authority Chairman Richard Kauffman, according to Washburn.

Future FERC picks seen as easier lift

One agency where Biden may have less trouble advancing nominees is the Federal Energy Regulatory Commission, an independent, quasi-judicial agency that has traditionally been insulated from politics.

On Nov. 30, the U.S. Senate voted to confirm two of Trump's pending FERC picks, bringing the commission to its full bipartisan complement of five sitting commissioners in nearly two years.

While Republicans could feasibly hold a 3-2 majority on the commission through all of 2021, Biden is widely expected to name a Democrat as chair. His next opportunity to nominate a new member will likely come when Commissioner Neil Chatterjee's term expires at the end of June 2021 unless a member decides to leave before then.

David Wochner, a partner at K&L Gates who runs the firm's federal policy practice, said he expects Biden's future FERC nominees to hold a deep understanding of wholesale power markets. Wochner also noted that FERC, under an eventual Democratic majority, will be tasked with implementing revised White House guidance for implementing the National Environmental Policy Act in assessing greenhouse gas emissions associated with pipelines and LNG terminals.

Commissioner Richard Glick, FERC's longest-serving Democrat, has thoroughly detailed his view that the commission needs to do a more comprehensive assessment of greenhouse gas emissions for projects to determine whether they are in the public interest.

"Commissioner Glick has outlined his view of the world very clearly on that in terms of actually analyzing [greenhouse gas] emissions in a broader context and utilizing the social cost of carbon in the agency's analysis of impacts on climate," Wochner said in an interview.

Former FERC Chairman Jon Wellinghoff, now CEO of GridPolicy Inc., expressed hope that the commission under Biden will continue to strike bipartisan compromises after advancing clean energy rulemakings for energy storage and distributed energy resources during the Trump era. "The commissioners are independent regulators who are supposed to be acting in a nonpartisan manner," Wellinghoff stressed.