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With a flourish of his pen, newly sworn in US President Joe
Biden paved the way for the US to rejoin the benchmark
international climate agreement it formally exited 4 November
2020.
One of Biden's first actions as the nation's chief executive
enabled the US to rejoin the 2015 Paris Agreement in 30 days,
and address global climate change on an international stage.
"This is a time of testing. We face an attack on our democracy
and on truth. A raging virus. Growing inequity. The sting of
systemic racism. A climate in crisis. America's role in the world.
Any one of these would be enough to challenge us in profound ways.
But the fact is, we face them all at once, presenting this nation
with the gravest of possibilities," Biden pledged during his
inaugural speech.
Adding: "Now we must step up. All of us. It is a time for
boldness, for there is so much to do. And, this is certain. We will
be judged, you and I, for how we resolve the cascading crises of
our era. Will we rise to the occasion? Will we master this rare and
difficult hour? Will we meet our obligations and pass along a new
and better world for our children? I believe we must and I believe
we will."
The non-binding international treaty, however, does not mandate
any carbon cuts. Rather, it urges all signatories to make a good
faith effort to commit to carbon emissions cuts so that
temperatures do not rise by more than 1.5 degrees Celsius by
2050.
During the runup to his election and subsequently, Biden pledged
to reduce the US power sector's carbon emissions to net-zero levels
by 2035 and across the economy by midcentury.
The
real challenge now for the Biden administration is to translate
those pledges into a new and more stringent nationally determined
contribution for the US, which was due for an update at the end of
2020, that cuts across all sectors.
Energy and environmental experts both in the US and around the
globe are confident Biden is serious about pursuing a goal of
climate neutrality. They note Biden has already made global climate
change a priority of his administration, elevating the issue for
the first time to the National Security Council level, and
appointing former Secretary of State John Kerry as the first
presidential envoy on climate matters. Kerry was the top US
diplomat involved in the talks that led to the Paris Agreement.
"Rejoining the Paris climate accord as one of his first acts in
office is symbolic of President Biden's strong and coherent
environmental commitment, which will pervade the Democratic
administration," Susan Farrell, IHS Markit vice president for
climate and sustainability, said 20 January.
"The naming of John Kerry as a special climate envoy is a
powerful signal to the world that a seasoned, and passionate,
diplomat will be engaging with the world to address the impact of
climate change," she added.
Biden also has appointed Gina McCarthy, former US Environmental
Protection Agency (EPA) Administrator, as the White House climate
coordinator; former Michigan Governor Jennifer Granholm to lead the
Department of Energy; and Representative Deb Haaland, Democrat-New
Mexico, to serve as Interior Secretary.
The 46th president also has appointed David Hayes to serve as a
special envoy on climate policy. Until his appointment, Hayes was
the executive director of the New York University School of Law's
State Energy & Environment Impact Center. This nonprofit has
assisted mostly Democratic state attorneys general fight against
the prior administration's regulatory rollbacks. The group also
advocates for clean energy and climate change, an activity which it
plans to continue.
International Energy Agency Deputy Executive Director David Turk
expressed confidence in Biden's climate team during a 11 January
briefing.
"This is a group that will be very much focused on real-world
action—the how. How do you do this in the near term? How do you
reduce your emissions in the near term? How do you provide jobs for
your population? How do you have people-centric, community-centric
measures going forward?" Turk said in response to a question about
the US' commitment to reducing greenhouse gas emissions under the
Biden administration.
McCarthy was the architect of President Barack Obama's 2015
Clean Power Plan, which set the first carbon dioxide limits for
existing coal-fired power plants. The Trump administration replaced
the Obama rule with its Affordable Clean Energy (ACE) rule, which
the US Court of Appeals for the District of Columbia Circuit
tossed out 19 January.
Biden's task was made significantly easier with the DC Circuit's
ruling because the court ordered EPA to rewrite the ACE rule, which
relied on energy efficiency improvements to coal-fired power plants
to reduce greenhouse gases (GHGs).
EPA under the new leadership of Michael Regan, who was North
Carolina's environment secretary until Biden nominated him, has an
opportunity to make a fresh start, according to Roger Diwan, IHS
Markit vice president, research and analysis.
The DC Circuit decision is "such a big present for the incoming
administration," Diwan said, adding that "the Biden administration
won't have to dismantle the rules. They can start from the
Obama-era baseline."
Or they can go further.
Use of rarely deployed powers
"The Biden folks will want some regulatory vehicle that they can
apply to all sectors," Robert Sussman, senior policy counsel to EPA
Administrator Lisa Jackson between 2009 and 2013, told IHS
Markit.
Sussman and at least one other attorney said EPA could deploy
its rarely used authority under Section 115 of the Clean Air Act to
target GHG emissions from all sectors, not just power generation.
This provision, titled "International Air Pollution," authorizes
EPA to develop and implement an economy-wide, market-based program
to reduce domestic GHG emissions.
"The great thing about Section 115 is that it allows so much
more flexibility than Section 111" of the Clean Air Act under which
the ACE rule was regulated, according to Amanda Shafer Berman, an
attorney with Crowell & Moring who until 2019 was with the
Department of Justice's environmental defense team defending key
EPA regulations.
Section 115 would provide an "umbrella approach" for capturing
all sector emissions, especially those arising from the
manufacturing sector, which are responsible for at least 22% of
total US GHG emissions, according to Sussman, currently a principal
for Sussman & Associates, a consultancy on energy and
environmental regulation.
Section 115's use could be "hotly contested" though because of
its reciprocity provision, Berman said.
To Berman, reciprocity just means that the US would have to
allow other states to comment on any proposed national GHG
standards, and other states would have to allow the US to have
similar input on their GHG standards, which arguably, she said, is
already the case under the UN Framework Convention on Climate
Change.
Sussman said some critics have interpreted this authority in
extreme terms, as in committing the US to making some type of
legally enforceable and reciprocal GHG cuts in line with other
countries.
"But I don't think the statute goes that far," he added.
Joanne Spalding, chief climate counsel for Sierra Club's
environmental law program, said she doesn't think the Biden
administration should put all its eggs in one regulatory
basket.
"I wouldn't advise the Biden administration to use just Section
115 instead of the other authorities that it has available to it,"
Spalding said.
She said a Biden EPA should continue to use its Section 111
authority to regulate power plant carbon emissions, which the DC
Circuit reaffirmed earlier in the week. The Biden administration
can rewrite the ACE rule to enable the nation's electric utilities
to adopt cleaner energy sources to reduce carbon emissions, which
the court said was a perfectly acceptable approach under the Clean
Air Act. And it would provide multiplier-type benefits, she said,
because the industrial sector uses electric power.
An easy lift for Biden would be to limit the federal
government's carbon footprint, according to Thomas Lorenzen,
another Crowell & Moring attorney. The US government is the
largest purchaser of materials in the nation and can easily employ
some green policies, such as accounting for carbon neutrality when
bidding on government contracts, said Lorenzen, adding: "This can
be achieved quite easily and not require rulemaking that can take
years."
Revoking past policies
In addition to giving the order to rejoin the Paris Agreement,
Biden will sign a number of executive orders to revoke prior
orders, and new ones aimed at addressing climate change.
One such order will re-establish the Interagency Working Group
on the Social Cost of Greenhouse Gases, which Trump disbanded in March 2017 through
an executive order, saying the estimates it generated on the social
costs of carbon were "no longer representative of government
policy." In his order, Biden will direct the working group to set
up a schedule for federal agencies to account for the full costs of
GHG emissions, including climate risk, environmental justice, and
intergenerational equity.
These include EPA rules repealing the Clean Power Plan;
loosening fuel efficiency standards for automobiles; setting weak
aviation GHG emissions standards; maintaining national air quality
standards for ozone and fine particle pollution despite scientific
evidence to the contrary; and setting GHG emissions thresholds for
major polluting industries.
Biden will also ask DOE to review rules on energy efficiency and
the Department of Defense its nationwide permits that apply to all
infrastructure projects. He will also ask the White House CEQ to
review the rule applying the National Environmental Policy Act, the
law requiring federal agencies to analyze environmental impacts,
including climate, of major infrastructure projects such as the
Keystone XL pipeline.
Biden's long-promised flourish brought an immediate response
from Republican lawmakers.
"The Paris Agreement has always been a disaster for the United
States. President Biden's decision to reenter the Paris agreement
disadvantages the United States to the sole benefit of our
adversaries," Representative James Comer of Kentucky said in a
statement, adding: "This will leave Americans to shoulder the costs
of higher energy bills, lower wages, fewer jobs, and bleak economic
production while countries like China revel in and benefit from our
downfall."
On his last day as chairman of the US Senate Environment and
Public Works Committee, Senator John Barrasso of Wyoming warned
that a return to the Paris Agreement would raise electricity prices
and do nothing to address the problem.
"Under the agreement, the Biden administration will set
unworkable targets for the United States while China and Russia can
continue with business as usual. It will result in spiking
electricity bills and higher prices at the pump," Barrasso
said.
Posted 20 January 2021 by Amena Saiyid, Senior Climate & Energy Research Analyst, IHS Markit