Top Democrats and progressive lawmakers have backed using a special legislative process known as budget reconciliation to enact major climate legislation if Democrats gain control of the White House and both chambers of the U.S. Congress following the November elections.
The reconciliation process could make passing big climate legislation easier, helping Democrats get around likely Republican resistance to sweeping measures aimed at curbing greenhouse gas emissions.
"If we are entrusted with majorities by the American people, Democrats will look at all available tools to pass legislation that reflects the values and goals of the American people and moves our nation forward," said U.S. Rep. John Yarmuth, D-Ky., chairman of the House Budget Committee. "That certainly includes combating our climate change crisis."
Budget reconciliation allows for expedited consideration of legislation that changes federal spending, revenue, and the debt limit, according to the Center on Budget and Policy Priorities.
Reconciliation has been used to help pass controversial budget and tax measures, including the Affordable Care Act and the 2017 tax overhaul, because reconciliation bills are not subject to the Senate's filibuster rules, which require at least 60 senators to agree to end debate on legislation and bring it to a vote. Instead, the Senate can pass reconciliation bills with only a simple 51-vote majority.
Former presidential candidate U.S. Sen. Bernie Sanders, I-Vt., who is ranking member of the Senate Budget Committee, said during a September 2019 climate town hall hosted by CNN that he could accomplish his campaign goal of powering the entire U.S. electricity and transportation sectors with renewable energy by 2030 through the use of budget reconciliation.
Another reconciliation proponent is Sen. Sheldon Whitehouse, D-R.I., who also sits on the budget committee and is a member of the Senate Environment and Public Works Committee.
"Assuming we control the Senate, then I think we go very quickly to a climate bill, and we probably use the budget reconciliation process to make sure that we have something that can pass," Whitehouse said during an Oct. 21 discussion on prospects for bipartisan climate legislation hosted by the Stanford Environmental and Energy Policy Analysis Center. "I think this is an urgent enough problem that we have to go forward if we can't find Republican help with the tools at our disposal."
In defending his position, Whitehouse pointed to Congress' failure during the Obama administration to pass major climate legislation. If a Democrat-controlled Senate does not use reconciliation to advance such proposals again, Congress will face "a micro-version of the same predicament because I think [Senate Republican Leader] Mitch McConnell is as opposed to serious climate legislation as the Trump administration."
Although lawmakers are limited on what measures they can advance through reconciliation, Whitehouse said "at a minimum, a carbon price, I think, could be a pretty clear budget-related item."
But a key Republican warned against the reconciliation approach, pointing to legal challenges that the Affordable Care Act later faced.
"I don't believe that anything that is advanced through the Congress and enacted into law that is not bipartisan is going to be enduring policy," Senate Energy and Natural Resources Committee Chairman Lisa Murkowski, R-Alaska, said during the Stanford event. "If we're going to really address the reality of climate change, it has to be enduring policy, and I don't think you get there through partisan tools like the removal of the filibuster and reconciliation."
Reconciliation unlikely to include new programs, emissions limits
Joseph Majkut, director of climate policy at the Niskanen Center, noted during an Oct. 20 virtual event that Republicans used budget reconciliation to open up the Arctic National Wildlife Refuge to oil and gas exploration through their 2017 tax cuts bill because doing so carried a small Congressional Budget Office score.
"That same concept is why one might consider a carbon price in the context of budget reconciliation," Majkut said. "On the CBO's list of ways to raise revenue, let's say on the million-dollar scale, a carbon price is pretty high up."
But the scope of a budget reconciliation package may come down to how the Senate parliamentarian interprets a reconciliation resolution, said Nathaniel Keohane, an environmental economist and vice president for international climate at the Environmental Defense Fund. Such resolutions direct individual committees to produce legislative language related to direct spending, revenue, or the debt limit.
Keohane noted during the same Oct. 20 event that budget reconciliation measures typically do not create new programs or set new performance standards such as emissions limits.
"You can find people who will tell you that they think you could get a clean energy standard passed through reconciliation," Keohane said. "I am not one of them because it would require so much" in terms of creating new regulatory language "and that seems pretty clearly outside of the ambit of a budget."
Sasha Mackler, director of energy at the Bipartisan Policy Center, cautioned that budget reconciliation is not necessarily "a slam dunk" if Senate Democrats hold a majority early on in a Biden presidency. "The path towards a Democratic majority in the Senate is red states or purple states turning blue in this election," Mackler said in an interview. "Those are probably going to be some fairly moderate senators."
One thing is clear: U.S. energy-sector observers will be racing to study up on budget reconciliation under a Democratic clean-sweep scenario, Kyle Danish, a partner at Van Ness Feldman LLP, said during an Oct. 22 election preview event.
"We're all going to become much better students of the budget reconciliation process in the months to come if we have a Biden win and Democrat-majority Senate," Danish said.