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Energy and Climate Update: Day 7 of Biden’s Presidency

January 28, 2021

President Joe Biden issued a series of executive orders on January 27 to further confront the “existential threat” of climate change, to reaffirm the executive branch’s commitment to evidence-based policymaking and innovation, and to build on the executive actions taken on Day 1. This LawFlash provides an overview of several of the key actions under those orders.

Addressing Climate Change at Home and Abroad

The Executive Order on Tackling the Climate Crisis at Home and Abroad (Climate Order) aims to spur domestic action and cooperation with international partners to address the impacts of climate change, which the president describes as a “climate crisis.” The Climate Order initiates a series of planned actions at the federal government level, including the creation of new executive-level offices and senior administration roles, a directive to halt new oil and natural gas leases on public lands or offshore waters, and the establishment of an Interagency Working Group on Coal and Power Plant Communities and a White House Environmental Justice Interagency Council. We discuss key components of the Climate Order below.

Climate Crisis in US Foreign Policy and National Security Considerations

The Climate Order seeks to establish climate considerations as an “essential element” of the US foreign policy and national security. To that end, the Climate Order creates the Special Presidential Envoy for Climate (Special Envoy), an executive office position tasked with elevating and coordinating climate change issues across President Biden’s administration. President Biden has designated former US Secretary of State John Kerry to serve as the first Special Envoy.

The Climate Order directs executive agencies with international exposure to develop, in coordination with the Special Envoy, strategies and implementation plans for integrating climate considerations into their international work within 90 days. National security agencies will also need to address the security implications of climate change. To that end, the Secretary of Defense must coordinate with other agency heads to develop within 120 days a “Climate Risk Analysis” that can be incorporated into modeling and war-gaming. The Climate Risk Analysis will also highlight security implications for consideration by the Secretary of Defense and the Secretary of Homeland Security.

The Climate Order also commits the US to increase its participation in various international initiatives to support climate-driven objectives. Notably, President Biden will host a Climate Summit with other world leaders on April 22, 2021 and will promote “enhanced climate ambition” across various international fora, including the Group of Seven (G7) and the Group of Twenty (G20), to address clean energy, aviation, shipping, the Arctic, the ocean, sustainable development, migration, and other “relevant topics.” The US will also immediately begin the process of developing its nationally determined contribution under the Paris Agreement and will develop a climate finance plan to assist developing countries in implementing emissions reduction measures.

The Climate Order also directs the Secretary of the Treasury to work on various finance-related initiatives, including efforts to “promote ending international financing of carbon-intensive fossil fuel-based energy while simultaneously advancing sustainable development and a green recovery,” as well as including a plan for protection of the Amazon rainforest and other critical ecosystems that serve as carbon sinks using market-based mechanisms. The Secretary of State is also directed to prepare a transmittal package seeking the Senate’s advice and consent to ratification of the Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, regarding the phasedown of the production and consumption of hydrofluorocarbons.

Government-Wide Approach to Climate Policy

To coordinate national policy on climate-related issues, the Climate Order establishes the White House Office of Domestic Climate Policy (Climate Policy Office) led by former Environmental Protection Agency Administrator Gina McCarthy, who assumes the newly established role of National Climate Advisor. The Climate Policy Office will coordinate the policymaking process with respect to domestic climate-policy issues, coordinate domestic climate-policy advice to the president, ensure that domestic climate-policy decisions and programs are consistent with the president’s stated goals and that those goals are being effectively pursued, and monitor implementation of the president’s domestic climate-policy agenda. All executive agencies are directed to cooperate with the Climate Policy Office as needed. The Climate Order also establishes a National Climate Task Force (Task Force), assembling leaders from across 21 federal agencies and departments to enable a whole-of-government approach to implement federal actions aimed at, among other things, reducing climate pollution, protecting public health, and stimulating job growth. The Climate Order permits the members of the Task Force to prioritize action on climate change in their policymaking and budget processes and procurement efforts, to the extent permitted by law.

Developing a Plan to Stimulate Clean Energy Industries

The National Climate Advisor is tasked with developing a plan to create jobs and stimulate clean energy industries that aligns the management of federal procurement and real property, public lands and waters, and financial programs to support robust climate action. Plan objectives include achieving or facilitating a carbon pollution-free electricity sector no later than 2035 and clean and zero-emission vehicles for federal, state, local, and tribal government fleets.

Increasing Renewable Energy on Public Lands and Offshore Waters

The Secretary of the Interior is tasked with reviewing siting and permitting processes on public lands and offshore waters to identify steps that the Task Force can take to increase renewable energy production on public lands and offshore waters. The goal of this effort is to double offshore wind by 2030. The Secretary of the Interior will consult with heads of agencies including the Secretary of Defense, the Secretary of Agriculture, the Secretary of Commerce, through the Administrator of the National Oceanic and Atmospheric Administration, the Secretary of Energy, the Chair of the Council on Environmental Quality, State and Tribal authorities, project developers, and other interested parties.

In addition, the Climate Order directs federal agencies to identify new opportunities to spur innovation, commercialization, and deployment of clean energy technologies and infrastructure. Agencies must also prepare action plans that describe steps each agency can take with regard to its facilities and operations to bolster adaptation and increase resilience to the impacts of climate change. The Office of Management and Budget, in coordination with the National Climate Advisor and agency heads, is also directed to seek to eliminate fossil fuel subsidies from the budget request for Fiscal Year 2022 and thereafter.

Pausing New Oil and Gas Leases on Public Lands and Offshore Waters

The Climate Order directs the Secretary of the Interior to pause issuing new oil and natural gas leases on public lands or in offshore waters until a comprehensive review and reconsideration of federal oil and gas permitting and leasing practices can be completed. This review will include consideration of potential climate and other impacts associated with oil and gas activities on public lands or in offshore waters and whether royalties associated with coal, oil, and gas resources extracted from public lands and offshore waters should be adjusted to account for corresponding climate costs. The Secretary of Interior will consult with the Secretary of Agriculture, the Secretary of Commerce, through the National Oceanic and Atmospheric Administration, and the Secretary of Energy to complete this review.

This action may not have an immediate impact on oil and gas companies because the Climate Order does not impact existing leases. Drilling on public land can and will continue with the moratorium on new leasing. A significant amount of land in the United States is already leased to oil and gas companies, a portion of which remains undeveloped, and additional leases on federal lands and waters were sought and granted in the last few months of the last administration in anticipation of this change in direction. However, it may have the longer-term effect of shifting oil and gas production overseas.

Conservation, Agriculture, and Reforestation

The Secretaries of Agriculture, Interior, and Commerce are directed to work with other officials to identify strategies to encourage broad participation towards a goal of conserving 30% of the country’s lands and waters by 2030, with additional actions focused on agriculture and forestry practices as well as fishery management. The Climate Order also requires development of a Civilian Climate Corps Initiative for conservation workers and related training.

Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization

Consistent with the “whole-of-government approach” to addressing climate change and its effects on communities and the economy, the Climate Order established an “Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization” (the Working Group), to focus on federal mitigation of the effects that the energy transition will have on communities currently driven and supported by coal, oil, and gas. The Working Group will be headed by the National Climate Advisor Gina McCarthy and Assistant to the President for Economic Policy Brian Deese, and will consist of cabinet secretaries such as the Secretaries of the Treasury, Interior, Energy, Health and Human Services, and others, as well as the director of the Office of Management and Budget, the Assistant to the President for Domestic Policy and Director of the Domestic Policy Council, and the Federal Co-Chair of the Appalachian Regional Commission.

The Working Group will focus on coordinating the identification and delivery of federal resources to revitalize communities whose economies are focused on coal, oil, gas, and power plants, and to develop and implement other policies set forth in the Climate Order, assess opportunities to protect the interests of coal and power plant workers, in conjunction and coordination with state, local and tribal officials, unions, environmental justice organizations, community groups, and other stakeholders identified by the Working Group. The first order of business for the Working Group will be to deliver a report to the president, within 60 days of the issuance of the Climate Order, describing mechanisms to prioritize federal grantmaking, loan programs, technical assistance, financing, procurement and other programs to support and revitalize the economies of coal and power plant communities, and providing recommendations for actions consistent with the Working Group’s other goals.

White House Environmental Justice Interagency Council

The Climate Order establishes a new White House Environmental Justice Interagency Council, chaired by the Chair of the Council on Environmental Quality. As with the Working Group, membership reflects a “whole-of-government” approach, and the Climate Order provides for a variety of specific actions to be taken, including new agency offices, screening tools, and directives to strengthen and coordinate enforcement. A new “Justice40” initiative is also created to develop recommendations as to how certain federal investments in the areas of clean energy, energy efficiency, and transit can be made towards a goal of having 40% of the overall benefits flow to disadvantaged communities.

Commitment to Science-Based Policymaking and Innovation

President Biden signed two additional executive orders aimed at bolstering the federal government’s commitment to rely on science to drive evidence-based decisionmaking and spur innovation.

The Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking (Memorandum) requires policy decisions that involve scientific or technological information to be subjected to “well-established scientific processes, including peer review where feasible and appropriate.” The Memorandum notes in particular that “[i]mproper political interference in the work of Federal scientists or other scientists who support the work of the Federal Government and in the communication of scientific facts undermines the welfare of the Nation, contributes to systemic inequities and injustices, and violates the trust that the public places in government to best serve its collective interests.”

In furtherance of those goals, the Memorandum orders the Director of the Office of Science and Technology Policy to ensure the “highest level of integrity” in executive branch involvement with scientific and technological processes. As part of these efforts, the Director of the Office of Science and Technology Policy is to convene an interagency task force of the National Science and Technology Council to conduct a thorough review of the effectiveness of agency scientific-integrity policies within 120 days, which review shall identify, among other things, instances in which existing scientific-integrity policies were not followed or enforced. The Memorandum also directs the heads of agencies to ensure that agency activities comport with scientific-integrity policies to support evidence-based policymaking.

Separately, the Executive Order on the President’s Council of Advisors on Science and Technology establishes the President’s Council of Advisors on Science and Technology (PCAST), which will comprise various leaders within the executive branch and representatives from the private sector appointed by the president. The PCAST will meet regularly and advise the president on matters involving policy affecting science, technology, and innovation, as well as on matters involving scientific and technological information that is needed to inform public policy relating to the economy, worker empowerment, education, energy, the environment, public health, national and homeland security, racial equity, and other topics.

Takeaways

Any assessment of the full impact of the Climate Order and the additional executive orders issued on January 27 will necessarily await implementation and the details of the agency plans that must now be prepared, as well as the extent to which some of the directives may be challenged in court. Nonetheless, these executive orders underscore the manner in which this administration will continue to emphasize the linkages between energy, climate, and economic growth as it seeks to reverse Trump administration policies and advance a comprehensive new energy agenda.

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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, PA
Kenneth M. Kulak

Washington, DC
Kirstin E. Gibbs
Bryan M. Killian
Duke K. McCall, III
Pamela Wu
Arjun Ramadevanahalli

Chicago, IL
Elizabeth P. Hanigan

New York
Jonathan Wilcon