December 3, 2020

Volume X, Number 338

Advertisement

December 03, 2020

Subscribe to Latest Legal News and Analysis

December 02, 2020

Subscribe to Latest Legal News and Analysis

December 01, 2020

Subscribe to Latest Legal News and Analysis

November 30, 2020

Subscribe to Latest Legal News and Analysis

Forecasting Climate Policy Under a Trump or Biden Administration

In the midst of massive West Coast fires and unrelenting hurricanes on the gulf coast, climate change is playing a prominent role in the presidential election, now only a month away. 

President Donald Trump and former Vice President Joe Biden have vastly different views on climate change and the type of policies and mandates that they believe are needed to address it—including those relating to carbon emissions. President Trump and his Environmental Protection Agency (EPA) Administrator Andrew Wheeler, who is responsible for carrying out the administration’s environmental policies, do not see climate change as a significant threat and, therefore, generally view carbon regulation as unnecessary. In contrast, Vice President Biden views climate change as an imminent, existential threat to our way of life, warranting aggressive action to curtail carbon dioxide (CO2) emissions both nationally and globally. 

Given these diametrically opposite views, the outcome of the election will have significant consequences on the type, shape, and direction of climate policies that will impact all aspects of society well beyond the next president’s time in office. 

What should we expect? If our past is prologue, then the actions over the past four years of the Trump administration—and during eight years of the Obama/Biden administration before that—provide a useful roadmap of what the United States can expect during the next four years on climate policy.   

President Trump’s position on climate change has played out in many of his actions. Most notably, his administration has rolled back many of the signature climate policies that the Obama/Biden administration advanced, including the Clean Power Plan, fuel economy standards, regulations controlling methane emissions from oil and gas facilities, as well as lowering the social cost of carbon used in cost-benefit calculations. 

If President Trump is re-elected, expect his administration to double-down on his agenda to rollback climate-related regulations and policies that his team believes exceed statutory authority or lack sufficient benefits. If Vice President Biden is elected, many of the rules and policies advanced by the Trump Administration are likely to be revisited and revised. Additionally, a top priority of Mr. Biden’s first year as president will likely include substantial green clean technology investments in an infrastructure bill, akin to the Obama stimulus, but perhaps much larger and more aggressive to help recover from COVID-19.

Although not comprehensive, below is a brief rundown of five prominent climate-related policy areas and how they may play out under President Trump and Vice President Biden. 

Paris Climate Accord

Symbolic of the major differences between President Trump and Vice President Biden is the Paris Climate Accord. The Paris Climate Accord is a nonbinding, global agreement in which each signatory country puts forth plans to lower greenhouse gas (GHG) emissions with the goal of limiting global temperature increases to 2 degrees Celsius. In one of his earliest actions, President Trump indicated his intention to withdraw from the Paris Climate Accord. In a speech declaring himself “elected to represent the citizens of Pittsburgh, not Paris,” President Trump announced that the United States would no longer be signatory to the agreement.1 In contrast, in one of his first actions if elected, Vice President Biden has said that he will recommit the United States to the Paris Climate Accord and re-engage with the international community on climate change. His campaign’s climate plan states “[h]e will fully integrate climate change into our foreign policy and national security strategies, as well as our approach to trade.”2

Planes, Trains, and Automobiles

One of President Trump’s most significant regulations is the Safer Affordable Fuel Efficient (SAFE) Vehicles rule,3 which lowered the corporate average fuel economy and GHG standards for light duty vehicles from a 5 percent annual increase in efficiency under the Obama administration to 1.5 percent. The SAFE Vehicles rule also repealed California’s authority to impose their own GHG standards for motor vehicles. During a second term, President Trump is expected to continue to implement this rule and look to set similar standards for future model years. This rule is being challenged and will likely be revisited and revised if Vice President Biden is elected to reflect a strengthened set of fuel economy standards with a focus on electric vehicles. Beyond vehicles, both candidates are looking to set GHG standards for airplanes. Vice President Biden’s infrastructure plan also prioritizes zero-emissions public transportation4 and investments to “spark the second great railroad revolution.”

Fossil Fuels and Renewable Energy

Perhaps President Trump’s most consequential carbon-related regulatory action was his administration’s adoption of the Affordable Clean Energy (ACE) rule. The ACE rule rolled back President Obama’s signature Clean Power Plan, which (before its rescission) was set to establish an aggressive, nationwide, market-based carbon emission reduction program for the electric utility sector. Look for Vice President Biden to revisit the ACE rule, as well as President Trump’s rollback of methane emissions requirements for oil and gas operations, and in their place advance policies promoting renewable energy and clean technology through regulations, financial incentives, and more federal funding. Either administration will also need to continue implementation of renewable fuels standards, but Vice President Biden could have a greater focus on advanced biofuels to reduce emissions in planes, ocean-going vessels, and other modes of transportation. Lastly, natural gas development will continue to get attention by either administration. President Trump has strongly supported hydraulic fracturing and has repeatedly warned that a Biden administration would ban all hydraulic fracturing. Vice President Biden has stated he would only seek to halt fracking on federal lands,5 but will likely look to tighten controls on methane emissions from natural gas operations. 

Infrastructure Resiliency

Vice President Biden has committed to ensure that U.S. government facilities are more efficient and climate-ready. His clean energy platform states “Americans deserve infrastructure they can trust: infrastructure that is resilient to floods, fires, and other climate threats, not fragile in the face of these increasing risks.” Vice President Biden’s plan would also incentivize the deployment of clean technology throughout the economy, including investments to accelerate supply chain resilience. The contents of an infrastructure package from the Trump Administration has been teased since the early days of 2017. It is unclear, however, what focus the Trump Administration would give to resilient infrastructure.

Environmental Justice and Public Right-to-Know

Vice President Biden has made clear he will make environmental justice a central focus of environmental policy, noting that “any sound energy and environmental policy must advance public health and economic opportunity for all Americans, in rural, urban, and suburban communities, and recognize that communities of color and low-income communities have faced disproportionate harm from climate change and environmental contaminants for decades.” His plan would establish an Environmental and Climate Justice Division within the Department of Justice, mandate monitoring in frontline and fenceline communities, and target resources consistent with environmental and climate justice. Vice President Biden would also support policies requiring companies to disclose climate risks and the GHG emissions in their operations and supply chains. 

President Trump’s second term, according to his EPA Administrator Andrew Wheeler, would break down silos between EPA’s air, land, and water programs to take a more holistic approach to individual communities. Administrator Wheeler has noted that EPA’s mission has been straight-forward since its founding: protect human health and the environment, regardless of ZIP code.

Copyright 2020 K & L GatesNational Law Review, Volume X, Number 282
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
Advertisement

About this Author

Ankur K. Tohan, KL Gates Law Firm, Environmental Law Attorney
Partner

Ankur Tohan works with the firm's Environmental, Land and Natural Resources practice. His practice focuses on energy infrastructure, natural resource development, compliance counseling, and defense of governmental and citizen enforcement actions.

Ankur helps clients navigate complex regulatory, permitting, and enforcement matters under a range of environmental statutes, including the Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act (BGEPA), Endangered Species Act (ESA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA...

206-370-7658
Craig P. Wilson Environment, Land and Natural Resources Attorney K&L Gates Harrisburg, PA
Managing Partner, Harrisburg Office

Craig Wilson is administrative partner of the firm's Harrisburg office and practice group coordinator for the firm's global environment, land and natural resources practice group. Mr. Wilson concentrates his practice in the areas of energy, environment and natural resources, and has counseled clients who are developing and operating energy projects and other commercial and industrial projects, clients who are seeking environmental permits and zoning and land development approvals from government agencies, clients who are exploring for, producing and transporting natural gas, clients who...

717.231.4509
Tad MacFarland, KL Gates Law Firm, Environmental Law Attorney
Associate

Tad Macfarlan is an associate in the firm’s Environment, Land and Natural Resources practice group. Mr. Macfarlan counsels the firm’s industrial, energy, utility and commercial sector clients on compliance with federal, state and local environmental and land use laws. He has extensive experience working with the regulatory regimes governing air emissions, wastewater and stormwater discharges, wetland and stream protection, solid and hazardous waste management, water withdrawals and supply, chemical and toxic substance controls, release reporting and response, and...

717-231-4513
Cliff L. Rothenstein, KL Gates Law Firm, Public Policy Attorney
Government Affairs Advisor

Cliff Rothenstein has more than 30 years of congressional and federal executive experience. Prior to joining K&L Gates, he served as Director of Legislative Affairs for the Federal Highway Administration (FHWA). In this capacity, Mr. Rothenstein worked on a daily basis with the FHWA Administrator, Deputy Administrator, and Deputy Secretary of the U.S. Department of Transportation (DOT). During Mr. Rothenstein’s tenure at FHWA, he led the development and advocacy efforts on legislation to reauthorize the nation’s surface transportation law where he played a...

202-778-9381
Laurie B. Purpuro, Government Affairs Advisor, KL Gates, Law Firm
Government Affairs Advisor

Ms. Purpuro is a government affairs advisor in the firm’s Public Policy and Law group. She focuses on energy policy.

Prior to joining the firm, Ms. Purpuro served as senior policy advisor to the Secretary of the U.S. Department of Energy. She has more than 10 years experience on Capitol Hill working for Senator Spencer Abraham (R-MI) as Deputy Chief of Staff, and for Congressman Jim Saxton (R-NJ) and Congressman Bob Davis (R-MI) as Legislative Director.  Ms. Purpuro has advised members of Congress on issues including the environment, energy, tax...

202-778-9206
Advertisement
Advertisement