Changing Nature of Climate Change
United States policy towards climate change has undergone several shifts over the past decade. The Obama administration’s sweeping reform of carbon-based emission standards, known as the Clean Power Plan (CPP), was undone via executive order by President Trump and was subsequently replaced by the Trump administration’s Affordable Clean Energy (ACE) Rule. With the upcoming inauguration of President-elect Biden, it appears that the pendulum is set to swing again.
The Obama-era CPP sought to curb greenhouse gas (GHG) emissions by regulating existing coal-fired power plants, while simultaneously incentivizing energy production from lower GHG-emitting sources, including natural gas and renewable power generation. The CPP established a regulatory scheme predicated on statewide carbon budgets and approached the issue of climate change in a more holistic manner than previous attempts.
EPA under the Trump administration took the position that the CPP represented an impermissible overreach because EPA’s authority to regulate facilities under Section 111 of the Clean Air Act was more limited in scope and did not permit the Agency to go “beyond the fenceline” of regulated facilities. In contrast to the CPP, the ACE Rule gives states primary authority to regulate GHGs from coal fired power plants by establishing unit-specific standards and does not require emissions reductions across the sector as a whole. There is currently litigation pending in the U.S. Court of Appeals for the D.C. Circuit regarding the ACE Rule, but it is expected that a Biden-led EPA will decline to defend the ACE Rule in that litigation and will ask the court to return the matter to the agency so that it can draft regulations more in line with the Biden administration’s stated policies.
President-elect Biden has described climate change as the “existential threat of our time” and has announced plans to spearhead a “national effort aimed at creating the jobs we need to build a modern, sustainable infrastructure now and deliver an equitable clean energy future.” The Biden EPA will likely learn from the legal challenges to the CPP and will pursue a more tailored version of the CPP that demands aggressive carbon emissions limits from existing coal-fired power plants, as opposed to a sector-wide approach.
Power sector carbon emissions likely won’t be the only climate-related issue the Biden administration will address at the beginning of its term. The administration is also expected to address the Trump administration’s rulemaking on New Source Performance Standards for methane emissions from the oil and gas sector; automobile emissions regulations; fuel efficiency standards; and the environmental justice issues implicated throughout. The Biden administration may also try to regulate high-emitting industry sectors like manufacturing for the first time.
The Biden transition team has also made several key personnel nominations impacting climate, including former Secretary of State John Kerry, who will serve as the “special presidential envoy on climate change,” and will be the first official dedicated to climate change to sit on the National Security Council. Biden has also nominated Congresswoman Deb Haaland as Secretary of the Interior, Michael Regan as EPA Administrator, Former Governor Jennifer Granholm as Secretary of Energy, and Brenda Mallory as Chair of the Council on Environmental Quality.
