President Biden Sets Broad Climate and Environmental Policies

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Introduction

During his campaign for president, then-candidate Biden called climate change an "existential threat" and urged policies that would achieve economy-wide net-zero carbon emissions by 2050 while boosting the American workforce and economy. On January 27, 2021, President Biden issued a pair of executive orders (EOs) and a presidential memorandum furthering those campaign promises. Across what he termed a "whole of government approach," the orders reengage the US in international climate policy discussions, incorporate climate change in national defense planning, pause and initiate a comprehensive review of fossil fuel permitting on federal lands, insulate federal scientists from political interference, and center environmental justice concerns in the federal response.

On the whole, the directives thus far are largely procedural, setting in motion multiple administrative processes and giving federal agencies across the government their marching orders. While the principles they express are consistent with Biden's campaign positions, how federal agencies put these principles into practice—and whether their decision-making processes will be inclusive of all sectors and provide meaningful opportunities for stakeholder input—is yet to be determined. It will be critical for companies in all areas directly or indirectly affected by these measures to look for constructive opportunities to have their voices heard early in the process, if they want to help shape these initiatives. Below, we summarize the major provisions of these actions and identify their areas of greatest impact.

Executive Order: Tackling the Climate Crisis at Home and Abroad

President Biden's Executive Order Tackling the Climate Crisis at Home and Abroad follows his January 20, 2021 order to call for ambitious domestic and international action to combat climate change. This order puts climate impacts and considerations at the center of various federal strategies and sets the stage for asserting US leadership on the international climate stage. The following summarizes the elements of the order.

Foreign Policy & National Security. President Biden's order establishes his administration's policy that "climate considerations shall be an essential element" of US foreign policy and national security. Specifically, President Biden calls for working with other countries and partners to implement—and build upon—the Paris Climate Agreement's objectives.

Pursuant to the January 27  Executive Order, the US will:

• Host an early Leaders' Climate Summit, which is expected to take place on Earth Day, April 22, 2021, and will serve as the restart of the Major Economies Forum on Energy and Climate;
• Prioritize pressing for enhanced climate ambitions and integration of climate considerations across a wide range of international fora, such as the Group of Seven (G7) and Group of Twenty (G20), among others;
• Develop the country's nationally determined contribution under the Paris Agreement to be submitted in advance of the Leaders' Climate Summit;
• Develop a climate finance plan within 90 days of the order to assist developing countries in implementing ambitious climate action;
• Direct the Secretaries of the Treasury, State and Energy to develop strategies to strengthen global clean energy collaborations, address global climate issues, promote climate financing, and end international financing of carbon-intensive fossil fuel-based energy; and
• Reinstate the Presidential Memorandum of September 21, 2016 (Climate Change and National Security).

In addition to these actions by the president, the order directs agencies and various national security officials to develop strategies and assessments of climate change's impact on foreign policy, national security, and US activities abroad, and plans to address those impacts. Specifically, the order requires: (1) agencies' strategies for integrating climate considerations and impacts into their international work if the agency engages in "extensive international work"; (2) a National Intelligence Estimate on the national and economic security impacts of climate change; and (3) a Climate Risk Analysis led by the Defense Secretary. Using the Climate Risk Analysis, the Defense Secretary, Chairman of the Joint Chiefs of Staff, and Secretary of Homeland Security are directed to consider the security and homeland security implications of climate change in their various defense and national security strategies.

Whole Government Approach. The EO fulfills President Biden's campaign promise to establishing leadership within the White House to spearhead, manage, and advise the President on domestic climate initiatives. Specifically, the EO formally establishes the new White House Office of Domestic Climate Policy, led by former Environmental Protection Agency (EPA) Administrator Gina McCarthy as National Climate Advisor. Additionally, it establishes the National Climate Task Force comprised of the heads of 21 federal agencies and departments (including EPA, Department of Energy (DOE), US Department of Agriculture (USDA), Council on Environmental Quality (CEQ), and Department of Homeland Security). The Task Force has a sweeping mission to coordinate the federal government's approach to addressing climate change in coordination with State, local, Tribal, and territorial governments with particular focus on conservation, environmental justice, climate resiliency, economic growth, and protecting public health. Significantly, the EO directs the Task Force to "prioritize action on climate change in their policy-making and budget processes" to the extent legally permitted.

Leverage the Federal Government's Footprint. The EO seeks to leverage the buying power of the federal government in furtherance of the Administration's GHG reduction aims through a multiple measures. For example, the EO requires development of a comprehensive plan to create well-paying jobs and stimulate clean energy through: (1) facilitating a transition to carbon-free electricity by 2035; and (2) transition the large (600k + vehicle) federal fleet to zero emission vehicles. Purchases and procurements must follow the Administration's January 25 EO that prioritizes "Made in America" goods.

Renewable Energy on Public Lands and Offshore. The order requires that Interior identify for the Task Force measures to increase renewable energy production on public lands and in offshore waters, in furtherance of the Administration's goal of doubling offshore wind by 2030.

Oil & Gas Leasing Halt; Elimination of Fossil Fuel Subsidies. The EO includes two initiatives that may pose particular challenges to the oil and gas industry. First, Interior must "pause" new oil and natural gas leases on federal lands and in federal waters while review and reconsideration of Interior's permitting and leasing practices is reconsidered in light of climate impacts. There is no timeframe specified for this review. In addition, the review must address whether any adjustments of royalties for oil and gas leasing are necessary in light of climate impacts. Any such analysis would likely take into account the "social cost of carbon" (SCC), which the Biden EPA has announced it will reestablish. From the language of the EO, and consistent with the Department of Interior's contemporaneous Press Release, the "pause" would not impact activities under existing oil and gas leases. This measure is intended to address what the Biden Administration refers to as a "fire sale" of public lands and waters under the prior administration. Second, the EO directs the heads of agencies to identify and to the extent feasible remove fossil fuel subsidies in the federal budget. Specifically, the Office of Management and Budget (OMB) is required to fully eliminate fossil fuel subsidies from the federal budget from FY 2022 onward.

Infrastructure. The next section of the order seeks to encourage jobs creation through infrastructure improvements that will help advance a clean energy economy. The Order directs CEQ and OMB to take steps to ensure that the effects of greenhouse gas emissions and climate change are considered in all federal permitting decisions. CEQ and OMB are further directed to identify steps that can be taken to accelerate implementation of clean energy and transmission projects in an environmentally sustainable manner. Finally, consistent with Biden's campaign promises, it is worth noting that there is an environmental justice emphasis to the Policy—for example, the Policy suggests that new jobs growth should be focused in communities subject to historically persistent pollution, communities of color and Native communities, as well as communities that have suffered as a result of economic shifts.

Advance Conservation, Agriculture, and Reforestation. In an acknowledgement that agricultural practices have significant implications for the United States' climate goals, the EO sets in motion a USDA process to identify and encourage sustainable, less carbon-intensive agricultural practices. It also emphasizes the role of conservation in climate resiliency and mitigation with an aggressive goal of "conserving" 30 percent of the United States' lands and waters by 2030. It is unclear from the face of the EO what the Administration means by "conservation" -- the term raises many questions including whether and to what extent the conservation goal will be deemed compatible with recreation and productive use of land for agricultural purposes or renewable energy production. In furtherance of these conservation and climate goals, the order requires the Task Force to develop with 90 days a strategy to establish a Civilian Climate Corps to mobilize (albeit through existing appropriations) a workforce to support these lofty aims.

Revitalize Energy Communities. President Biden is dedicated to addressing the climate crisis through a workforce-centered strategy. Recognizing that a clean energy transition will require economic revitalization of communities reliant on carbon-intensive industries, the order establishes an Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization (Interagency Working Group), which will be chaired by the National Climate Advisor and the Assistant to the President for Economic Policy and housed in the Department of Energy. The group will coordinate the identification and delivery of federal resources to revitalize the economies of coal, oil and gas, and power plant communities and develop economic and social recovery strategies, and make recommendations to the President on how to achieve these objectives. When developing its assessments and recommendations, the group must consult with state, local, and tribal officials; unions; environmental justice organizations; community groups' and other relevant stakeholders.

Environmental Justice. President Biden reiterated his commitment to achieving environmental justice during the announcement ceremony of this executive order on January 27, 2021. To promote environmental justice, President Biden's order directs agencies to make achieving environmental justice part of their missions by developing programs and policies that address the health, environmental, economic, and cumulative impacts on disadvantaged communities. In addition, President Biden's order modifies President Bill Clinton's Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations) to effectively restart, and rename, the White House Environmental Justice Interagency Council and the White House Environmental Justice Advisory Council. The Interagency Council is led by the Chair of CEQ and tasked with coordinating with the Advisory Council to develop a strategy to address current and historic environmental justice and to develop performance metrics to ensure accountability.

Lastly, the Executive Order includes directives to several cabinet and White House officials regarding addressing environmental justice concerns through assessment and enforcement. The order directs:

• The Chair of CEQ to create a geospatial Climate and Economic Justice Screening Tool and to publish annually interactive maps highlighting disadvantaged communities;
• The EPA Administrator to strengthen environmental enforcement for violations with disproportionate impact on underserved communities and to create an environmental pollution notification program for frontline and fenceline communities;
• The Attorney General to consider renaming the "Environment and Natural Resources Division" of the US Department of Justice (DOJ) to the "Environmental Justice and Natural Resources Division," to develop a comprehensive environmental justice enforcement strategy, and to create a new Office of Environmental Justice (leaving open where that Office will be housed within the Department) that will play an important coordinating role among DOJ components;
• The Secretary of Health and Human Services to establish an Office of Climate Change and Health Equity, an interagency working group focused on decreasing climate risks for vulnerable populations, and a biennial Health Care System Readiness Advisory Council;
• The Director of the Office of Science and Technology Policy to publish a report identifying climate strategies and technologies that will result in the most air and water quality improvements;
• The Chair of CEQ, the OMB Director, and the National Climate Advisory to publish recommendations for the Justice40 Initiative, which will try to direct 40% of the benefits of federal investments toward disadvantaged communities; and
• The OMB Director to publish an annual Environmental Justice Scorecard detailing agency environmental justice performance measures.

Presidential Memorandum: Scientific Integrity

The second document signed by President Biden on January 27, 2021 is a presidential memorandum designed to protect scientific integrity and evidence-based decision making within executive agencies, harkening back to President Obama's Memorandum of March 9, 2009 relating to the same topic. In particular, the Memorandum aims to eliminate political interference in the scientific process and ensure scientists are empowered to speak freely regarding what the evidence shows. The Memorandum begins with a cautionary note that appears aimed at perceived practices of the prior administration: "Improper 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."

To implement scientific-integrity goals, the Memorandum directs the creation of an interagency Task Force on Scientific Integrity to review within 120 days all agency scientific-integrity policies and, among other things, identify past deviations and failures to enforce existing scientific integrity policies and ensure that, going forward, these policies prevent improper political interference in the scientific process. The Task Force will also develop a framework for ongoing regular assessment and iterative improvements to agencies' scientific integrity policies and practices.

Agencies are directed to update their scientific-integrity policies and ensure that these policies comply with the recommendations of the Task Force. In addition, the Memorandum directs every agency to, within 120 days, designate a Scientific Integrity Official and directs every agency that oversees, directs or funds scientific research to also designate a Chief Science Officer. These agency officials will be charged with ensuring the agency's programs are scientifically and technologically well-founded and improving scientific-integrity across the agency's functions.

Finally, the Memorandum directs OMB to issue guidance aimed at improving agencies' evidence-based policymaking decisions, directs agencies to expand open and secure access to Federal data collected in government programs, and directs agencies to, within 90 days, review and provide reports regarding the need for independent scientific and technological advisory committees to advise the agency's functions. 

Executive Order: Establishing the President's Council of Advisors on Science and Technology

Following up on his Presidential Memorandum promoting scientific integrity and evidence-based policymaking, President Biden issued an executive order to establish the President's Council of Advisors on Science and Technology (PCAST) and to revoke President Trump's October 22, 2019 executive order, which established an advisory council of the same name.

President Biden's PCAST is assembled to advise the President on matters involving science, technology, and innovation policy. PCAST, which will terminate in two years unless extended by the President, will be led by the Assistant to the President for Science and Technology (the Science Advisor) and by at least one non-federal member of the Council. In total, PCAST will be composed of no more than 26 members who are appointed by the President and come from non-federal government sectors. The Council is tasked with soliciting information and ideas from stakeholders and providing advice to the National Science and Technology Council, when requested. In addition, PCAST will serve as the President's Innovation and Technology Advisory Committee and the National Nanotechnology Advisory Panel, which are required by statute.

Previous Executive Action

Shortly after taking the oath of office, President Biden issued two other executive orders: one rejoining the Paris Climate Agreement, as he promised to do on the campaign trail, and another to press pause on the Trump administration's deregulatory actions related to the environment.

Executive Order: Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. On January 20, shortly after taking the oath of office, President Biden signed the "Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis," which reverses a slate of Trump Administration energy and environmental policies. Among other things, the Order:

• Articulates a set of key priorities and principles, including a return to science-based decision-making; holding polluters accountable—particularly where minority and low-income communities suffer disproportionate harm; mitigating greenhouse gas emissions; and bolstering resilience to climate change;
• Directs heads of all federal agencies to consider suspending, revising, or rescinding any Trump Administration agency actions, such as regulations or guidance, that impede or do not support the above priorities and principles (separately, White House Chief of Staff Ronald Klain issued a memorandum imposing a regulatory freeze on all of the previous administration's last-minute "midnight regulations"; more information can be found here);
• Requires a review of the Trump Administration's changes to national monuments' boundaries and conditions to determine whether restoration of pre-Trump Administration boundaries and conditions is appropriate;
• Halts all action related to oil and gas leases in the Arctic National Wildlife Refuge until the Secretary of the Interior can conduct a new, comprehensive analysis of the potential environmental impacts;
• Reinstates an interagency working group to develop calculations for the social costs of greenhouse gases to be used in rulemakings when estimating and monetizing the future damages of climate change, and hence the monetary benefits associated with mitigation of greenhouse gases;
• Revokes President Trump's March 2019 Presidential Permit for the Keystone XL Pipeline,; and
• Rescinds numerous executive orders and agency actions from the Trump Administration related to energy and the environment.

Paris Climate Agreement. In addition to the climate-related executive order described above, President Biden also signed a letter on January 20 to the United Nations announcing the US would, once again, join the Paris Climate Agreement. The letter starts a 30-day process of bringing the United States back into the accord.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.