Biden Nominees Signal A New Era Of Climate Federalism
President-elect Joe Biden has assembled what environmentalists are calling an “all-star” team to lead his government’s efforts to curb climate change and reverse the Trump administration’s astoundingly pro-polluter legacy.
Rep. Deb Haaland (D-N.M.), one of the first two Native American women elected to Congress and a strong supporter of the Green New Deal movement, would replace a former oil lobbyist if the Senate confirms her as head of the Interior Department. In place of the ex-coal lobbyist running the Environmental Protection Agency would be Michael Regan, who brokered the biggest coal-ash cleanup settlement in U.S. history as North Carolina’s top environmental regulator. The Energy Department would swap a fossil fuel die-hard for Jennifer Granholm, Michigan’s former governor and attorney general and now a clean energy advocate.
With the Senate likely to remain in Republican hands this year, Biden seems to be preparing to resurrect the Obama administration’s approach after Democrats lost the House in the 2010 midterms: a combination of aggressive regulation, executive orders and close collaboration with states.
To oversee the effort, Biden picked Gina McCarthy, Barack Obama’s former EPA chief and architect of the administration’s regulatory suite, as his domestic climate czar, a position Obama initially created in his first term to coordinate the federal government’s energy and environmental strategy and work to get climate legislation passed in Congress.
Beyond their stark ideological contrasts to President Donald Trump’s agency heads, Biden’s top-level nominees also appear to signal the new administration’s plans to embed climate policies at the state level, cementing the clean-energy transition and making it harder for the next GOP president to undo whatever progress his administration makes.
“There’s this very calculated, hard-nosed recognition among the choices that executive action is going to be the key to progress, and action at the state level is going to be the key to progress,” said Cara Horowitz, a climate policy expert at UCLA School of Law.
As the Obama and Trump presidencies prove, it could likely be a rocky road. Absent new legislation, the White House must creatively interpret its legal mandate to enact rules under existing statutes, leaving them open to challenge. Republican state attorneys general sued the Obama administration so routinely that the top cop in Texas joked: “I go into the office in the morning. I sue Barack Obama, and then I go home.” GOP-led states persuaded the Supreme Court to block Obama’s signature power plant regulation in 2016, and that was before Trump added three right-wing justices to the bench and stacked lower federal courts with conservatives. Red states are already vowing to pursue that same strategy.
But Biden and Vice President-elect Kamala Harris have options. And they’ve made it clear they’re all on the table.
“The Biden-Harris Administration intends to pull every lever available, not only through executive and legislative action, but partnering together with cities, states, and businesses to reverse course on the climate threat, advance environmental justice and a clean energy future, and create millions of good-paying union jobs,” Jamal Brown, a Biden transition spokesman, told HuffPost in an email.
‘A Weak Tool’
Biden kicked off his presidential run on the wrong side of a climate movement. Young activists were leading the push for a more ambitious federal approach, against the backdrop of dire United Nations projections on global warming. Biden, at that point, was “carving out a middle ground” on climate policy, as Reuters reported in 2019. Advocates and scientists feared he’d take the same slow, moderate approach that Obama had during his first term a decade earlier.
Obama picked Ken Salazar, an oil and gas ally, as his interior secretary, and balanced new federal support for renewable energy with boosts to fossil fuel drillers, promising an “all of the above” energy play. The approach relied on Congress, both chambers of which Democrats controlled when Obama took office, to enact a new carbon pricing scheme that would gradually increase the cost of fossil fuels and incentivize a shift to solar, wind and energy efficiency. Democrats’ landmark cap-and-trade bill ― a conservative and incrementalist policy that aimed to set a cap on carbon emissions, then let companies trade pollution permits ― fizzled in 2010. Going forward, the GOP, seemingly hell-bent on obstructing anything Obama proposed and financially encouraged by dark-money groups unleashed by the Supreme Court’s 2010 Citizens United ruling, adopted a full-fledged position of denying the reality of climate change itself.
The partisan divides that inhibited strong climate action during the Obama years have only deepened under Trump, a reality that Horowitz hopes will be enough to deter the Biden administration from futile attempts at reaching across the aisle to address climate change.
“Witnessing and seeing firsthand how deeply dysfunctional attempts at bipartisan action have been over the last four years have really taken the shine off any notion that there might be some grand ‘Kumbaya,’ coming-together moment, and that the Biden administration should waste any amount of time whatsoever at the beginning of their administration seeking such a moment,” she said.
Biden will be forced to navigate a similar legislative playing field, except another decade into a rapidly worsening global crisis. Unless Democrats can somehow flip a pair of Republican-held Senate seats in the Georgia runoff election on Jan. 5, the GOP will maintain control of the Senate while Democrats hold a slim majority in the House.
There is some possibility of compromise on issues such as nuclear power, carbon capture technology and research funding for renewables, all things included in the bipartisan spending bill passed last month. But a legal mandate to rapidly phase out fossil fuels and intervene radically in the economy is difficult to envision, given the makeup of the 117th Congress.
Biden isn’t ruling out a legislative pathway. In the $1.7 trillion climate plan he released in 2019, which set a goal of achieving net-zero emissions by 2050, Biden said he will “demand that Congress enacts legislation in the first year of his presidency” to establish a system for achieving that 2050 target. He said he will call on Congress to make huge investments in energy and climate research and incentivize a rapid shift toward clean energy technologies.
In his plan, Biden also vowed to “use the full authority of the executive branch,” beginning his first day in office, to combat global warming, including orders to limit methane pollution from fossil fuel operations, protect the Arctic National Wildlife Refuge from oil and gas drilling and conserve 30% of America’s lands and waters by 2030.
But whether he’s able to forge a climate legacy that endures beyond his time in office may very well hinge on leveraging states and cities to take aggressive action.
“The lesson of the Trump years is that executive order is a weak tool,” said Amy Myers Jaffe, managing director of the Climate Policy Lab at Tufts University. “The Biden team absolutely needs to see how they can support states ― from New England wind to stricter methane rules mirroring Colorado to California’s clean freight and [electric vehicle] policies.”
Myers Jaffe supports a federalist model for addressing climate change, one to “organize state voluntary efforts into a federally led initiative that would build a national policy without letting one or two states dictate through the courts,” she said.
Notably, several members of Biden’s environmental team have state government experience.
“That’s where I think the list really shines,” Horowitz said. “He’s packed this list with people who know how state progress is made.”
What He Can Do Without Congress
Experts say there are numerous ways for the incoming Biden administration to empower states and shore up its own gains even if a Republican unseats him in 2024.
Biden’s administration could condition federal funding for state plans to build electric vehicle infrastructure and clean energy, or pay states to prepare climate action plans and stipulate that they be subject to federal enforcement or forced to return the money if they don’t meet those goals. Such a program would need to be voluntary, and could be expanded to include funding for states that agree to conserve additional land under their control, but it’s a possibility, said Michael Gerrard, director of Columbia Law School’s Sabin Center for Climate Change Law.
“It’s challenging to achieve permanence without legislation,” Gerrard said. “But conditions on voluntarily received financial assistance are one method.”
The administration could also consider providing new resources for states to mitigate the effects of wildfires and other climate-related disasters, or give states the flexibility to figure out how to meet new federal pollution-reduction goals, Horowitz noted.
“Giving states the power and funding to make progress helps to insulate progress from the seesaw of future federal policy priorities ― not perfectly, but at least somewhat,” she said.
David Hayes, executive director of New York University School of Law’s State Energy & Environmental Impact Center and a former deputy interior secretary under Obama, declined to comment specifically on the incoming Biden administration, but stressed the importance of federal-state collaboration.
“The Trump administration pursued its energy, climate and environmental deregulatory agenda with little regard for states’ rights and interests,” he said, citing, among other things, the administration’s decision to revoke California’s ability to set its own stronger fuel economy standards. “This approach does not produce durable policy. As we’ve seen, many of the Trump administration’s rollbacks and replacement rules have been struck down in the courts, and many more will meet the same fate.”
In his lengthy climate plan, Biden slammed the Trump administration for abdicating America’s leadership on climate, and applauded state and local leaders for their efforts to slash planet-warming emissions, invest in renewable energy and build climate-resilient infrastructure. Since Trump announced in June 2017 that he would pull the U.S. out of the landmark Paris climate agreement, 25 states, hundreds of cities and thousands of businesses and other entities have pledged their commitment to the goals of the international accord.
“These states and cities deserve to once again have a partner in the White House,” the Biden plan reads. “Biden will be that partner.”
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