What Biden can do if Congress balks at his green agenda

By Timothy Cama | 05/28/2020 07:22 AM EDT

Joe Biden has been wooing progressives with a list of green initiatives. But even if Democrats take control of Congress, he might have to rely on executive actions to accomplish some of his goals.

Presumptive Democratic presidential nominee Joe Biden has a number of plans on energy and the environment, but Congress — even under Democratic control — may not go along.

Presumptive Democratic presidential nominee Joe Biden has a number of plans on energy and the environment, but Congress — even under Democratic control — may not go along. Claudine Hellmuth/E&E News(illustration); Gage Skidmore/Flickr(Biden); nternet Archive Book Images/Flickr (drafting sketches); MaxPixel (turbines);Architect of the Capitol/Flickr (Capitol)

Joe Biden has been wooing progressives with a list of green initiatives. But even if Democrats take control of Congress, he might have to rely on executive actions to accomplish some of his goals.

The presumptive Democratic nominee for president has a $1.7 trillion climate plan that includes myriad proposals — including new regulations on car fuel efficiency, massive increases in government spending, additional taxes on greenhouse gas emissions and rejoining the Paris Agreement.

But experts and advocates say Biden would likely have to adjust some of his expectations if Congress can’t help, and he may not be able to achieve, for example, net-zero greenhouse gas emissions by 2050.


Still, should he win in November, the former vice president would have a wide range of tools at his disposal to make big changes to climate and environmental policy.

"When you’ve got the agencies of the federal government, and you’ve got the power to steer and direct and appoint, that’s a huge power," said Jody Freeman, who leads the Environmental and Energy Law Program at Harvard Law School and was an environmental policy adviser in the Obama administration.

"So I see what Biden could do as quite significant, even though we all think it would be pretty fabulous if Congress could do something," she said.

Brett Hartl, chief political strategist at the Center for Biological Diversity Action Fund, was more direct.

"We think he could actually accomplish pretty much everything you would need to do to really get the climate crisis under control," Hartl said.

"Don’t wait on Congress," he said. "Don’t wait to see if one type of policy solution works best; just do them all."


Regulations represent the most obvious area in which Biden could make big policy changes as president. He has committed that on his first day in office, he would issue executive orders directing relevant federal agencies, including EPA and the Interior Department, to implement new, aggressive regulations.

These include rules on power plant greenhouse gas emissions and methane emissions for oil and natural gas production. He would also establish auto efficiency rules that would aim to ensure 100% of new cars are electric.

And if Biden doesn’t get any help from Congress, he might want to double down on regulations and go even further.

"It’s not that you have to go find other tools in the executive branch. You have to use the regulatory tools you’ve got to do more," said Freeman.

She argued specifically that Biden could write a new version of the Clean Power Plan far more ambitious than the one the Obama administration put forward in 2015, which would have cut emissions 32% below 2005 levels by 2030.

Since then, many coal-fired power plants have been shut down, renewable power has become much cheaper, and the sector’s emissions have dropped, showing it’s possible to do much more, she said.

"You can be ambitious with a new version of the Clean Power Plan because the sector itself has made progress, and the market forces are already driving us in that direction, with the cheap cost of natural gas, the penetration of renewables and the rest," she said.

Freeman was in the White House when Congress gave up in 2010 on the major carbon cap-and-trade legislation Obama had sought. After that, he shifted efforts to focus on regulatory climate action, mainly the Clean Power Plan.

Biden has also pledged to stop new fossil fuel leases on federal land through the Interior Department.

He could push agencies such as the Federal Energy Regulatory Commission to make climate a major part of their missions, and double down on the Department of Energy appliance efficiency standards.

"There’s a lot to do there that we still haven’t done," Freeman said of the DOE standards.

Going after pipelines, exports

Hartl’s group has put together a whole website, dubbed #ClimatePresident, listing executive actions it wants Biden to endorse — from declaring climate change a national emergency to unlocking certain presidential powers with the aim of blocking fossil fuel exports and infrastructure like pipelines.

"He’ll have lots of potential tools that could actually accomplish most of this, and he’s got to actually use them," he said of Biden. "It’s just a question of how aggressive Biden wants to be."

Hartl acknowledged that executive action might not be as durable as legislation, since a future Republican president could undo policies like regulations and permit rejections, as Trump has done.

But that shouldn’t deter Biden from trying, Hartl said. "Obviously, it would be better if Congress also did something, but it would be unlikely," he said.

Evergreen Action, a new organization staffed by former climate advisers to Washington Gov. Jay Inslee’s (D) presidential campaign, is pushing Biden to consider what he could do in numerous areas, including implementing policies to consider climate change governmentwide and to better protect environmental justice.

"He should understand that this is not an issue to be siloed to the EPA, but something that should be a part of decisionmaking on all matters," said Jamal Raad, Evergreen’s campaign director. "For example, when you appoint someone to an important Treasury Department position, do they have a climate lens?"

On the environmental justice front — an area where Biden has pledged to do more — Evergreen wants Biden to commit that a certain portion of all federal clean energy spending would go to minority communities. Inslee set that level at 40% in his climate plans.

‘Go to Congress’

What Biden does unilaterally is nearly guaranteed to run into opposition from affected industries and Republicans. His regulations would almost certainly face lawsuits that would subject them to review by a federal judiciary that Trump has spent years filling with conservative jurists.

Andrew Grossman, an attorney at BakerHostetler who helped fight Obama’s Clean Power Plan, said going it alone wouldn’t be Biden’s best bet.

"When you’re talking about sweeping changes to the economy, that’s supposed to come from Congress. Congress wields the legislative power. And the executive may have some discretion to fill in the details," Grossman said. "But when you’re talking about major national policies, you’re not talking about details."

He characterized Obama’s climate agenda as a "complete failure," since the Clean Power Plan — his central climate policy — was halted by the Supreme Court. It never went into effect, and the Trump administration made its rollback final this year.

Grossman would advise Biden to "go to Congress. If you want to make sweeping change, you need a statute."