Biden Vows to Marry Climate, Jobs on “Climate Day”

Akin Gump Strauss Hauer & Feld LLP

[co-author: Shawn Whites]

As we previewed yesterday morning, January 27 was the Biden administration’s “Climate Day.”

Yesterday’s actions—two executive orders and a presidential memorandum—provided further detail on the President’s roadmap for achieving a carbon pollution-free power sector by 2035 and setting the country on an “irreversible” path to a net-zero emissions economy by 2050 without sacrificing economic growth. Flanking the President at the Climate Day press conference were Gina McCarthy, the National Climate Advisor and chair of the new National Climate Task Force that oversees the domestic climate agenda, and John Kerry, the new Special Presidential Envoy for Climate who oversees international climate policy.

To help organize the roughly 33 pages of directives to federal agencies, we identified seven cross-cutting themes from the Climate Day actions: (i) national security; (ii) international leadership; (iii) job creation; (iv) energy sector; (v) domestic sustainability; (vi) environmental justice; and (vii) science-based decision-making. Under each theme below, we list relevant key actions from yesterday’s events. During the coming days, we will dive deeper into these themes.

National Security

  • Provides climate change a seat on the National Security Council through the Special Presidential Envoy for Climate.
  • Directs the Director of National Intelligence to prepare a National Intelligence Estimate on the security implications of climate change.
  • Directs the Department of Defense, Department of Homeland Security and Joint Chiefs of Staff to study the security implications of climate change, to be incorporated into defense strategies, guidance documents, risk assessments and similar analyses.
  • Revives a 2016 memorandum issued by President Obama that ensures that federal agencies fully consider climate change-related impacts in the development of national security doctrine, policies and plans.

International Leadership

  • Announces a Leaders’ Climate Summit to be held on Earth Day (April 22) to prepare for COP-26, and aims to announce a new U.S. Nationally Determined Contribution by that Summit.
  • Advances the United States’ ratification of the Kigali Amendment to the Montreal Protocol regarding the phasedown of hydrofluorocarbons (HFCs)—gases that replace ozone-depleting substances but have substantial global warming potential.
  • Commits the United States to developing a climate finance plan to assist developing countries in their emissions reduction efforts, environmental protection efforts and climate-aligned investments.
  • Prioritizes ending international financing of carbon-intensive fossil fuel-based energy while advancing sustainable development and a green recovery.
  • Reconvenes the Major Economies Forum on Energy and Climate to pursue green recovery efforts, initiatives to advance the clean energy transition, sectoral decarbonization and alignment of financial flows with the objectives of the Paris Agreement, including with respect to coal financing.

Job Creation

  • Directs federal agencies to procure carbon pollution-free electricity and zero-emission vehicles to create jobs and stimulate clean energy industries, consistent with the President’s Buy American Executive Order.
  • Directs federal agencies to identify opportunities for federal funding to spur innovation, commercialization and deployment of clean energy technologies and infrastructure, and ensure that federal funding is used in that manner.
  • Calls for the establishment of a new Civilian Climate Corps Initiative to create jobs that conserve and restore public lands and waters, support community resiliency, increase reforestation, increase carbon sequestration in the agricultural sector, protect biodiversity, improve recreation access and address climate change.
  • Establishes a new Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization, which will advance federally funded projects—such as plugging abandoned wells and reclaiming abandoned mine land—that support communities most affected by the energy transition. Notably, in the press conference announcing these initiatives, the President emphasized (1) his administration will not ban fracking; (2) capping abandoned oil and gas wells, reclaiming mines and turning “old brownfield sites into new hubs of economic growth” would create jobs; and (3) he would “do right” by fossil fuel workers by making sure they have the “opportunities to keep building the nation in their own communities and getting paid well for it.”

Energy Sector

  • Directs the Department of Interior to pause new oil and natural gas leases on public lands or in offshore waters, pending its completion of a comprehensive review and reconsideration of federal oil and gas permitting and leasing practices. The review will cover potential climate and other impacts associated with oil and gas activities, and discuss whether to adjust royalties associated with coal, oil and gas extraction (or take other action) so as to account for corresponding climate costs.
  • Directs federal agencies to identify any fossil fuel subsidies they provide, then take steps to ensure that federal funding is not directly subsidizing fossil fuels. In addition, the Office of Management and Budget must seek to eliminate fossil fuel subsidies from the budget request for Fiscal Year 2022 and thereafter.
  • Directs the Department of Interior to review siting and permitting processes on public lands and in offshore waters to increase renewable energy production on those lands and in those waters, with the goal of doubling offshore wind production (or, more realistically, doubling the amount of available leases) by 2030.

Domestic Sustainability

  • Prioritizes transitioning to a clean or zero-emission vehicle fleet for federal, state, local and Tribal governments.
  • Directs the Council on Environmental Quality and Office of Management and Budget to (1) ensure that federal infrastructure investment reduces climate pollution and (2) require that federal permitting decisions consider the effects of greenhouse gas emissions and climate change. They will also review siting and permitting processes and identify steps that can be taken to accelerate the deployment of clean energy and transmission projects.
  • Directs the Department of Agriculture to encourage the voluntary adoption of “climate-smart” agricultural and forestry practices that decrease wildfire risk and result in additional, measurable and verifiable carbon reductions and sequestration.

Environmental Justice

  • Establishes a White House Environmental Justice Interagency Council and a White House Environmental Justice Advisory Council to prioritize environmental justice and ensure a whole-of-government approach to addressing current and historical environmental injustices.
  • Creates a government-wide Justice40 Initiative with the goal of delivering 40 percent of the overall benefits of relevant federal investments to disadvantaged communities, and tracks performance toward that goal through the establishment of an Environmental Justice Scorecard, to be posted on a public government website.
  • Initiates the development of a Climate and Environmental Justice Screening Tool, building off of the U.S. Environmental Protection Agency’s EJSCREEN, to identify disadvantaged communities, support the Justice40 Initiative and inform equitable decision-making across the federal government.
  • Directs the U.S. Attorney General to consider creating an Office of Environmental Justice and to coordinate with the U.S. Environmental Protection Agency to develop a comprehensive environmental justice enforcement strategy that remedies systemic environmental harms.

Science-Based Decision-Making

  • Re-establishes the President’s Council of Advisors on Science and Technology (PCAST), which will advise the President on policy that affects science, technology and innovation. The PCAST will be co-chaired by the President’s Science Advisor (President Biden has nominated geneticist Eric Lander for the post, and it will be a cabinet-level position for the first time), and the remaining members will be from outside the government and “have diverse perspectives and expertise in science, technology, and innovation.”
  • Charges the Director of the Office of Science and Technology Policy (President Biden also nominated Eric Lander for this post) with the responsibility for ensuring scientific integrity across federal agencies.
  • Tasks agencies that oversee, direct, or fund research with designating a senior agency employee as Chief Science Officer to ensure agency research programs are “scientifically and technologically well-founded and conducted with integrity.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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