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Energy and Climate Update: Day 1 of Biden’s Presidency

January 21, 2021

As the 46th president of the United States, Joe Biden took significant steps on his first day in office to advance the energy and climate initiatives of his administration. This LawFlash provides a brief summary of several key actions, including the notice of the United States’ intention to rejoin the Paris Agreement, cancellation of the federal permit for the Keystone XL Pipeline Project, and directives by President Biden to certain federal agencies, as well as an overview of key members of his climate team who will be advancing administration policies.

Rejoining the Paris Agreement

Rejoining the Paris Agreement fulfills a promise from President Biden’s presidential campaign. As a procedural matter, President Biden first sent notice to the United Nations on January 20 that the United States intends to rejoin the agreement, and the United States will rejoin 30 days thereafter.

Once the United States rejoins the Paris Agreement, it will face the difficult task of determining and submitting nationally determined contributions (NDCs) to the other member nations, which will be the United States’ stated goals for greenhouse gas (GHG) emission reductions over time. During the Obama administration, the United States pledged that by 2025, it would reduce emissions levels by 26–28% compared to 2005 levels. During his presidential campaign, President Biden pledged to have the United States achieve net-zero emissions by 2050, but the United States is currently not on track to achieve either goal.

The various additional executive orders related to renewable energy and climate change that President Biden is expected to issue in the first weeks of his presidency as well as early legislation will be closely evaluated by both domestic and international communities to assess the scope and timing of the administration’s plans for GHG reduction. There may be additional debate in the months ahead as to whether the United States rejoining the Paris Agreement requires Senate ratification.

Rescinding Federal Permit for Keystone XL Pipeline

President Biden signed an executive order to rescind the federal permit for the Keystone XL pipeline, which effectively halts construction on the Keystone XL project. The Keystone XL pipeline project is designed to carry oil sands crude from Alberta, Canada to Nebraska. The project was previously rejected by the Obama administration, which viewed the project as contrary to its climate agenda, but was later granted a presidential permit under the Trump administration.

However, this action is not likely to end debate over the fate of the Keystone XL pipeline. Alberta Premier Jason Kenney indicated earlier this week that he will seek legal damages if President Biden plans to cancel the pipeline, and he urged the Biden administration to, at a minimum, have further discussions with Canadian officials about the project.

Administrative Directives

President Biden’s Day 1 actions also included the following directions to federal agencies to take specific steps that will contribute to addressing the climate crisis:

  • Reestablishing the Interagency Working Group on the Social Cost of Greenhouse Gases and directing the issuance of a “social cost of greenhouse gas” schedule for agencies to consult and apply to their cost analyses, and to ensure that agencies account for the full costs of greenhouse gas emissions, climate risk, environmental justice, and intergenerational equity.
  • Placing a moratorium on all oil and natural gas leasing activities in the Arctic National Wildlife Refuge and instituting an examination of whether any leases granted by the previous administration—particularly those announced just a day before inauguration—are valid and were properly issued.
  • Directing federal agencies to consider revising vehicle fuel economy and emissions standards, methane emissions standards, and appliance and building efficiency standards to help decrease pollution and save consumers money.

Additionally, the president also directed all executive departments and agencies to immediately review and “take action to address” federal regulations and other actions promulgated during the last four years that conflict with “important national objectives” such as the “pursuit of environmental justice” that is “guided by the best science”; the protection of public health and the environment; accountability for polluters “including those who disproportionately harm communities of color and low-income communities”; the reduction of greenhouse gas emissions and increased resiliency to climate change; and others.

Climate Team

Through a number of pre–Inauguration Day announcements, President Biden has assembled a climate team to focus on implementing his climate policy agenda. While cabinet appointees and agency heads will need to be confirmed by the US Senate, other appointees (such as former Senator John Kerry and former Environmental Protection Agency (EPA) Administrator Gina McCarthy) are not subject to congressional approval and will play instrumental roles. Below is a brief summary of the background of some of the announced members of President Biden’s climate team:

  • Secretary of Energy Jenifer Granholm – The former governor of Michigan has significant experience with the Michigan auto industry and worked on the 2009 bailout of General Motors Co and Chrysler. She is a strong proponent of renewable energy and is expected to push for US development of electric vehicles.
  • Secretary of Transportation Pete Buttigieg – One of the tasks for the former mayor of South Bend, Indiana will be to implement a clean public transport plan.
  • Secretary of the Interior Deb Haaland – Upon confirmation by the US Senate, the New Mexico congresswoman would be the first-ever Native American US cabinet secretary. She serves as the vice-chair of the House Committee on Natural Resources and is a co-sponsor of the Green New Deal.
  • EPA Administrator Michael Regan – The former secretary of North Carolina’s Department of Environmental Quality previously spent time at the EPA and the Environmental Defense Fund and has a history of working on environmental justice issues.
  • Climate Czar John Kerry – The former secretary of state and US senator will have a seat on the National Security Council, which emphasizes the importance of climate change for the Biden administration. Mr. Kerry helped negotiate the Paris Agreement and will be expected to lead the United States’ climate efforts on the international stage.
  • National Climate Advisor Gina McCarthy – Ms. McCarthy has served as the president and CEO of the Natural Resources Defense Council for the last four years, and prior to that, was the head of the EPA under President Obama’s administration and helped negotiate the Paris Agreement. Ms. McCarthy will be the first-ever national climate advisor and is expected to play a key role in leading the Biden administration’s domestic climate policy.

DC Circuit Decision on EPA Authority

In addition to the initial steps being taken by President Biden, the US Court of Appeals for the DC Circuit issued a decision just prior to Inauguration Day that invalidated the Trump administration’s EPA repeal of the Obama-era Clean Power Plan and its replacement Affordable Clean Energy Rule. This judicial development is viewed as favorable to the Biden administration’s climate policy agenda and is expected to lead to new rules and regulations focused on emissions reductions.

The Morgan Lewis team continues to monitor the latest announcements and actions taken in the first 100 days of the Biden administration and expects to provide additional energy and climate updates.

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Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Philadelphia
Kenneth M. Kulak

Washington, DC
Kirstin E. Gibbs
Bryan M. Killian
Duke K. McCall, III

Chicago
Elizabeth P. Hanigan

New York
Jonathan Wilcon

Los Angeles
Jane Kang