US rejoins Paris Climate Agreement

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.

Biden will also sign an executive order, " Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis," that directs EPA, the Department of the Interior, DOE, the White House Council of Environmental Quality, and other agencies to review regulations issued by the prior administration.

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