Ep.98: It's Over.

What can President-Elect Joe Biden do to reverse course on the environment and climate change? What can he accomplish with a Republican-controlled U.S. Senate, pending results of two runoff elections in Georgia? What can he pursue in the executive branch? And how will the left wing of the Democratic Party play into his plans?

We unpack all of this with Jody Freeman, law professor and director of the Environmental and Energy Law Program at Harvard Law School. Before that she worked in the Obama White House as counselor for climate and energy where she was the architect of the fuel-efficiency regulations for cars, which were later rolled back under President Trump. 

Listen to the full episode or read the transcript below:

Reid Frazier: Can we just get your overall impressions of the results from the election? 

Jody Freeman: Broadly, of course, this is a massive change in terms of everything people care about - covid, the economy, but in our domain -  energy, climate, environment -  this is going to be a huge shift back in the direction of promoting clean energy. The Trump administration, as you know, spent four years unraveling climate regulations and environmental protection. And so the Biden administration has a big task ahead of it, which is to rebuild what has essentially been completely dismantled. 

“The change in tone, the change in leadership, the willingness to be part of an international process, it's very important.”

I expect the Biden folks very quickly to issue executive orders on climate change and energy policy, just like they will issue a spate of orders on other things. I'd expect, first of all, the president to announce that he plans to rejoin the United States to the Paris agreement because that's something the president can do unilaterally, doesn't need Congress, doesn't need a lot of process.

Secondly, I would expect him to direct the agencies, principally the EPA, but also the Department of the Interior and Department of Energy and others, to take steps to revisit regulations that the Trump administration weakened, regulations that have to do with climate change, regulations that have to do with all dimensions of environmental protection. So that will take some time. But those rulemakings are things that the executive branch is in charge of and they don't need Congress to do it.

And then there's another set of things we can talk about, which are harder, which would require legislation. That's going to depend on whether the Senate is in Republican hands or if the Democrats pull off two victories in the runoff in Georgia with Kamala Harris in position to cast the tie-breaking vote. That's a different scenario.

Rejoining the Paris Climate Agreement 

Reid Frazier: One of the things Joe Biden has pledged to do is to return to the Paris climate accords. I'm sure that will garner a lot of attention. But how important is it? What does it do for climate action in the United States?

Jody Freeman: I think rejoining the Paris agreement will be part of a re-engagement with the international community. Trump withdrew the U.S. and it was a very isolationist position. I think the Biden administration, by rejoining the Paris agreement, is going to signal to the world that the United States is committed to a global solution to climate change. The United States will have to bring a new promise that it will be doing things at home to fulfill its obligation. That's what the international community will expect.

But the change in tone, the change in leadership, the willingness to be part of an international process, you know, it's very important. With the U.S. back at the table, the rest of the world will be invited and to some extent pressured and leveraged to come along. But the U.S. has to do its part. It's going to have to make a pledge that is serious and ambitious. I think the Biden administration is prepared to do that. 

What Can Biden Do with a Republican Senate?

Reid Frazier: Let's go to the base case, which is Biden doesn't have a Democratic Senate or, you know, even if he gains a narrow majority. What does all that mean for advancing his climate agenda? 

Jody Freeman: The Biden campaign put out very ambitious goals. One is for the U.S. economy to be net-zero carbon emissions by 2050, and the other is to have a carbon-free electricity sector by 2035. And most people believe that to accomplish those goals, you would need new laws. You would need Congress to be part of the process.

People talk about a carbon tax that could be passed. They talk about a cap or a limit on greenhouse gas emissions economy-wide, with perhaps a market trading scheme for allowances for those emissions beneath that cap. There are lots of design issues here, design questions, but there are a variety of ways to accomplish a national limit on greenhouse gas emissions.

“The other smaller piece that might be doable, even with Republican control, is…a clean energy standard.”

The other possibility is something more targeted, like a national clean energy standard that would basically incentivize more deployment of clean energy in the electricity sector. So there are a lot of policy possibilities.

But for the biggest, most ambitious programs, you really do need Congress. And that's why people are worried. To get this sort of expansive legislation passed, they might have to do more targeted things. A couple ideas come to mind. One is a big infrastructure bill or a covid recovery bill that could contain a lot of investment and support for clean energy as part of those bills. I think that's a real possibility.

The other smaller piece that might be doable, even with Republican control, is something like a clean energy standard, because a lot of states have renewable portfolio standards trying to encourage renewable energy in their states, including some red states. So there might be bipartisan support for something like that. 

Reid Frazier: So some bipartisan action is possible. How likely is it? 

Jody Freeman: We have to wait and see if Mitch McConnell is still leader of the Senate, and if he's still going to pursue his obstructionist tactics. We saw those in the Obama years. It depends whether Joe Biden has the relationship people claim that he has had historically with McConnell, where they can do business together. A lot of people are skeptical about that. They think the politics may make it impossible to do deals across partisan lines. 

“The big dream of a massive, expansive climate bill probably has to be adjusted if the Republicans control the Senate.”

It’s hard to handicap right now. There's so much unknown. But I do think there will be pockets of potential cooperation, even if it's a Republican-controlled Senate, because it will be close. And that means that Democrats might be able to attract to their side a couple or three, even one or two Republican votes for climate or energy bills will make the difference. But I think the big dream of a massive, expansive climate bill probably has to be adjusted if the Republicans control the Senate. 

What Can Biden Do With Regulation?

Reid Frazier: OK, so let's talk about what Biden could do without congressional action just through running the executive branch of the federal government. What are some things that you foresee? We know that President Trump has done a lot of rollbacks of Obama era administration regulations, like the Clean Power Plan, which regulated emissions from the power sector for greenhouse gases. What do you see as some of the possibilities? 

Jody Freeman: I think that the Biden administration is going to go back to the Obama era approach, but I think they're going to strengthen those standards because in the meantime, we've seen technology develop and we've seen industry make a lot of progress on more efficient ways to produce electricity, more efficient ways to produce cars. There's been a lot of progress that new standards can build upon.

I see the Biden administration going back and replacing the Clean Power Plan with another set of standards for the power sector. I see them going back and reinforcing the fuel efficiency standards. At the time when Obama adopted them, they were historic to double fuel efficiency, essentially by 2025. And I would see the Obama standards being the starting point for a Biden administration. And they will strengthen those standards for the transportation sector. 

I see them probably revisiting the methane rules for methane leaks from oil and gas operations, setting standards for methane because it's such a powerful greenhouse gas, even more powerful than CO2. Across the board, I think what you'll see is a suite of greenhouse gas rules affecting sectors of the economy that will add up to some real progress. But it will be through regulation. It will be principally under the Clean Air Act.

Most of those rules will be legally challenged. And so the agencies will have to be strategic and careful in how they write these rules and make sure that they're going to withstand legal scrutiny.

With a 6-3 Supreme Court?

Reid Frazier: Yeah, let's talk about that. So what is the new 6-3 makeup of the court mean for those kinds of inevitable challenges should the Biden administration put forward more stringent climate regulations? 

Jody Freeman: What I would say about that is the court was already growing skeptical of ambitious agency rules, especially ambitious EPA rules and particularly greenhouse gas rules. So even before Amy Coney Barrett was added to the court, there was reason to worry that if challenges to EPA rules made it to the Supreme Court, that it might be hard to get five votes in favor of supporting the agency's rules.

So all government agencies, and the EPA in particular, are on notice that they have to be cautious about their rulemaking and try not to do something so novel or expansive as to attract the withering skepticism of a Supreme Court that looks askance at expansive use of agency power and instead color in the lines, if you like, and make rules that are very carefully and well supported by the record and go in there and defend those rules.

The Trump administration did a terrible job defending their rules. They built flimsy records and were set back by the courts time and time again. Their rules were struck down for sloppy legal procedures. They really did a poor job. I think the Biden team is going to go in there with a view to making it through the courts with a nice set of regulations that they feel comfortable with. 

Reid Frazier: If you were on the team writing those regulations, what are some of the kinds of things that you would try to work towards to be extra careful about having an Amy Coney Barrett or Neil Gorsuch be okay with your regulation? 

Jody Freeman:  First thing I'd do is just make sure that the statutory authority, the legal authority is solid. And make sure the lawyers have strong arguments based on the text of the law, that they're empowered to do these things and then build these really robust records because all of the agency's rules are reviewed under a standard of arbitrary or capriciousness.

“They have to be careful to show that they're being rational and they're making strong decisions based on the evidence. I have complete faith that the Biden team…is going to be very good at this.”

So they have to be careful to show that they're being rational and they're making strong decisions based on the evidence. I have complete faith that the Biden team at the Department of Justice, the Biden team at EPA and other agencies is going to be very good at this.

But what it means is the most novel legal approaches may be something inventive and new. Anything that looks like it's creating a brand new undiscovered authority will come in for close scrutiny because these judges are so textualist. You keep hearing talk of Amy Coney Barrett being such a strong textualist. Well many of them subscribe to textualism. So I think it's important to root the agency's power in the text of the statutes. 

With Fuel Efficiency Standards?

Reid Frazier: You were in the Obama administration and were the architect of the clean car standards about a decade ago. What do you think has changed in the last 10 years that might make it different for a Biden administration? 

Jody Freeman: That's a great question. And when you say 10 years ago, it makes me feel very old. What's changed actually goes in the direction of the industry appreciating that they need to make more fuel efficient cars. Some in the industry, like Ford and others, have committed to making more fuel efficient cars. 

They didn't support the rollback of these standards by the Trump administration. You remember there was a lot of conflict over this and some very powerful voices in the industry didn't want to see these standards unravel. They were already committed to making a fleet that was more efficient. 

So I would expect that the way that technology [has] developed, the way that the companies have developed their attitudes about this, I think it all goes in the direction of ever stronger standards. So in a way, it might even be easier than it was for us in the Obama administration to work with the industry toward ever-increasing fuel efficiency, which is crucial because the transportation sector is producing the most greenhouse gas emissions and increasingly more than other parts of the economy. 

With the Left Wing and Executive Branch?

Reid Frazier: There's debate in the Democratic Party about the direction of the party. How has the rise of the left wing of the party in the last couple of years affected the discussion around some of these issues that you've been working on for a while? 

Jody Freeman:  Yeah, I think the rise of the Green New Deal, the Sunrise Movement, the community that is really pushing ambitious action on climate change has got to get a lot of credit for creating energy around this and driving the conversation.

If you remember, in the Democratic primary, the candidates were all pressed about their positions on climate change and the clean energy transition. I think the Green New Deal created a focal point for discussion. The Biden campaign adopted some very forward-leaning positions, partly as a credit to that movement. I think now the challenge is delivering and it becomes harder in divided government. It becomes harder if the Senate is run by the Republicans.

There's going to need to be some patient legislating, working across the lines to try to get some agreements through. That's just going to take some really hard work and dedication. But at the same time, you have to be prepared to really press the executive levers that you control.

“You embed a concern about climate across the executive branch and that helps you not just accomplish greenhouse gas reductions, but create a kind of interest and priority around making progress with whatever powers the executive branch has.

In the government you run, you make sure climate is a priority across the board. It's a priority in your international relations. You deal with it with countries in bilateral negotiations. Climate is a priority in all of your diplomatic contexts. Climate is a priority for your Treasury Department. The Department of Defense cares about climate and energy efficiency because they consume huge amounts of energy in warfare.

In other words, you embed a concern about climate across the executive branch and that helps you not just accomplish greenhouse gas reductions, but create a kind of interest and priority around making progress with whatever powers the executive branch has. That's the kind of thing Biden has to do while he's pushing legislation in Congress. 

Reid Frazier: There's talk that there could be trouble if Biden tries to nominate somebody who's too far left for some of these cabinet positions. I'm just wondering, how important are the actual personnel that that Biden would install into a cabinet, say, for the EPA or the Department of Energy? 

Jody Freeman: I think it's a very big deal. Traditionally, presidents get their cabinets. Out of a sense of historical practice, the Senate confirms the president's cabinet. So if McConnell and the Republicans take the position that they are not going to confirm the picks of President Biden, he will have to resort to other strategies to fill those posts with acting administrators. And that's really in nobody's interest. That would be very unfortunate

“They're also going to have to rebuild the agencies to some extent, because Trump didn't just deregulate to an unprecedented degree. He really chipped away at the core capacities of these agencies to undermine the career staff.”

But one way or another, I'm pretty sure Biden's going to fill the post with really terrific people who are aligned with his agenda. It matters who's at the top of these agencies. It matters that they're experts, that they get the issues, that they have political skills. They can go into Congress and defend their agency actions. They can argue for their budgets. They can push internally to get rules across the finish line. You need really skilled people who understand the mission of the agency and are committed to it. I think the Biden team is ready to go.

I would expect them to have already been thinking very hard about these posts. Biden committed to a diverse set of appointees. I'm not sure who it will be yet, but I think they're going to be very keen to put some of these rules back in place that the Trump administration so badly weakened. 

And the other thing I would say is they're also going to have to rebuild the agencies to some extent, because Trump didn't just deregulate to an unprecedented degree. He really chipped away at the core capacities of these agencies to undermine the career staff. He maligned the career staff. He moved them around. He demoted them. He sidestepped them. He disregarded science. He really eroded the heart and soul of the federal government. I think the Biden team is going to have to be committed to rebuilding expertise, commitment to science and the like. 

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Jody Freeman is the director of the Environmental and Energy Law Program at Harvard Law School.