A Change Comin’ On: Biden’s Anticipated “Day One” Environmental Actions

December 2, 2020

President-elect Joe Biden has stated that one of the greatest challenges facing the United States is the viability and welfare of the environment. As the country moves toward a Biden presidency, environmental change and a more aggressive stance to regulation are anticipated.

The day Biden takes office, he intends to hit the ground running on 10 major climate change executive orders that:

  1. Require limits on methane emissions for oil and gas operations.
  2. Use the federal government procurement system to work toward 100 percent clean energy and zero-emissions vehicles.
  3. Ensure U.S. government buildings and facilities are more efficient and climate-ready.
  4. Implement the already existing Clean Air Act to address greenhouse gas emissions and further reduce those emissions from the transportation sector by developing new fuel economy standards to ensure all new sales for light- and medium-duty vehicles will be electrified and to require annual emission improvements for heavy-duty vehicles.
  5. Increase liquid fuels, such as advanced biofuels, and make agriculture a key part of the solution to the climate crisis.
  6. Reduce emissions and cut consumer costs through new standards for appliance and building efficiency.
  7. Require federal permit decisions to consider the effects of greenhouse gas emissions and climate change and ensure every federal infrastructure investment reduces greenhouse gas emissions.
  8. Require public companies to disclose climate risks and greenhouse gas emissions in their operations and supply chains.
  9. Protect biodiversity, slow extinction rates and conserve 30 percent of America’s lands and waters by 2030.
  10. Permanently protect the Arctic National Wildlife Refuge, establish national parks and monuments, ban new oil and gas permits on public lands and waters, modify royalties on existing oil and gas permits to account for climate costs, create programs to enhance reforestation, and develop renewable energy on federal lands and waters to double offshore wind by 2030.

To assist Biden with his Clean Energy Revolution, a group of more than 150 experts with high-level government expertise, including nine former cabinet members, released on Nov. 11, 2020, a 300-page plan called the Climate 21 Project. The top-level recommendations include items such as the following:

  • Issuing an executive order to create the White House National Climate Council, which will be coequal to the Domestic Policy Council and the National Economic Council
  • Launching a 90-day Cabinet-level task force to write and publish a new, four-year climate ambition agenda containing specific, agency-by-agency actions on greenhouse gas mitigation and the clean energy transition, climate change adaptation and resilience, and international climate diplomacy and development
  • Standing up a high-level, internal climate team with the power to mobilize the agency within each department or agency with significant climate responsibilities
  • Prioritizing staffing and budgeting, including rapid nomination processes and rebuilding personnel and morale

The Climate 21 Project consists of several memoranda that make specific recommendations for day one and the first 100 days of the new administration for 11 White House offices, federal departments and federal agencies, and provides insight into what the new administration may do. The plan asks Biden to launch an aggressive series of immediate actions and paradigm shifts in support of his lofty environmental and clean energy agenda.

Set forth below are brief summaries — organized by office, department and agency — of some of the plan’s recommendations to the Biden administration.

Environmental Protection Agency (EPA)
On day one, it is recommended that staff be informed that the agency will be returning to its key mission of dealing with the climate crisis while also creating Clean Air Act rulemaking teams for vehicles and the power and oil and gas sectors. Over the first 100 days, the plan recommends that the EPA create an Environmental Justice Council of high-level agency officials and build a solid case for a restoration budget and rebuilding staff morale. Among other things, the plan recommends that the EPA develop a coordinated regulatory plan for hydrofluorocarbons and engage with the White House and State Department on ratification of the Kigali Amendment, develop a strategy to address the remaining emitting sources, and assemble a team from the Office of General Counsel to coordinate with the Department of Justice to file the motions necessary to reconsider Trump-era rules in pending litigation.

Department of Interior (DOI)
The Climate 21 Project recommends that the Department of Interior create a DOI Climate Council, bring the Bureau of Land Management’s national leadership back to Washington, D.C., and issue a request to reprogram FY 2021 funds to climate mitigation. In addition, it recommends putting the Outer Continental Shelf entirely or mostly off-limits to new oil and gas leasing, cutting oil and gas venting and flaring on a case-by-case basis through permits and approvals, approving pending offshore wind projects, and managing public lands for carbon sequestration through restoration and wildfire focus.

Department of Energy (DOE)
The plan suggests that DOE immediately form a Climate Strike Team to push climate action while key leadership positions await Senate confirmation. The plan also recommends reconstituting and rebuilding the Appliance Standards Program.

Department of Agriculture (USDA)
The experts behind the Climate 21 Project recommend that the USDA issue a secretarial order on climate change and rural investment to signal climate change as a top priority. In addition, they suggest that the department decarbonize rural energy and promote green energy and smart grids through rural development grants and loans to rural utilities, as well as dramatically increasing the use of methane digesters, biofuels and wood energy, and product innovation.

Department of Transportation (DOT)
The plan asks DOT to initiate rulemakings to undo Trump-era rules and to accelerate decarbonization of surface transportation systems. It also asks DOT to initiate a new transportation electrification task force that will focus on electrification policy and job creation and to propose new budget and legislative initiatives.

State Department
To meet Biden’s promise to rejoin the Paris Agreement, the plan recommends that the State Department ready the necessary instrument during the transition to support a presidential day one announcement. Over the next months, the experts recommend that the State Department work with the White House and other agencies to set up a domestic process to develop the next nationally determined contribution under the Paris Agreement.

Department of Treasury
The Climate 21 Project suggests that the Treasury Department appoint a counselor to the secretary for economic growth and climate, as well as identify budgetary opportunities to amplify U.S. climate re-engagement through financial contributions to international climate finance institutions and multilateral development banks. Over the first six months, the experts recommend that Treasury integrate climate objectives into economic recovery efforts and advance domestic climate policy through tax, budget and regulatory initiatives.

And this is just the beginning …

President-elect Biden’s macro plan calls for an energy sector overhaul and complete shift to clean energy by 2035 and, according to a recent Biden press release, “one that will put the United States on an irreversible path to achieve net-zero emissions, economy-wide, by no later than 2050.” His “Build Back Better” campaign allocates $2 trillion to advancing clean energy in the short run by seeking to invest in infrastructure and the power and housing sectors with the hope of creating more jobs. When President-elect Biden takes office next month, expect a quick start to mobilizing the federal government to achieve these goals.

McGuire Woods partner Allison D. Wood is nationally recognized as a leader in environmental law, particularly in the area of climate change, where she has guided clients through complex and politically charged precedent-setting cases before the U.S. Supreme Court and several Courts of Appeals. Described by Chambers USA as a “terrific lawyer,” Allison can be reached at 202.857.2420, or by email at [email protected].