What Next for Climate Policy?
The election outcome is still contested. Here are three possible scenarios.
We probably won’t be sure for a while who will be our next President. The GOP will probably control the Senate but even that isn’t completely certain yet. Rather than play forecaster, I thought it would be helpful to look at how various outcomes will impact climate policy.
Since we’re all suffering a lot of angst right now, I wanted to start with a few positive things — things that won’t change regardless of the election outcome. The first involves the changing economics of the energy system. Basically, the costs of renewable energy and power storage are dropping more rapidly than anyone expected. This makes it much more economically feasible to move away from fossil fuels. We’re seeing the effects of this economic shift even in conservative states. Second, an increasing number of U.S. states and cities have embraced climate action. California is still in the lead but there are a lot more states joining in. Ambitious targets for emission reductions are popping up from coast to coast (and beyond the coast to Hawai’i). Finally, every country in the world except the U.S. is part of the Paris Agreement. Not a single country has followed Trump’s lead. That’s not the only promising development on the international front. China surprised everyone with much more ambitious climate targets than expected.
And now, to our three scenarios.
Scenario 1: Trump wins.
Trump is a known commodity, a big fan of the fossil fuel industry and a climate skeptic. He has issued scores of environmental rollbacks. The rollbacks include nearly all of Obama’s climate change rules. Trump will continue to defend the rollbacks in court. If any are sent back to agencies, they will probably be given minor tweaks and reissued, leading to another round of litigation.
Trump will continue to promote greater oil and gas production, especially on federal lands and offshore. He will also continue efforts to block parts of California’s climate program. Finally, he will attempt to roll back even more environmental regulations. Agency procedures will be changed to make it harder to create new regulations in the future.
Environmental groups and Blue States will push back at Trump as hard as possible. They’ll win some of those battles, if only because the Trump Administration has often stretched statutory language and ignored evidence.
We won’t get much help with climate policy on the federal side, however, except maybe for some funding for energy research. Any real progress will have to come from state government and from the private sector, which has been increasingly pressured by investors and consumers to address climate change.
Scenario 2: Biden wins but GOP keeps Senate.
We can expect Biden to rejoin the Paris Agreement and try to support international action to the extent he can. He’ll also repeal a lot of Trump’s Executive Orders, on Day 1 or soon after. He’ll ask courts to halt litigation over rollbacks while agencies reconsider their positions. Past experience suggests those requests will be granted.
The next step is for agencies like EPA to reverse the Trump rollbacks and replace them with pro-environmental regulations. Trump has moved the courts, and especially the Supreme Court, well to the right. Nevertheless, with good lawyering, there’s quite a bit that a Biden EPA should be able to accomplish. Examples include clamping down on methane emissions from the oil and gas industry and stricter fuel efficiency standards for cars and trucks. EPA can also tighten other environmental standards in ways that will encourage a shift away from fossil fuels.
Scenario 3: The Democrats get lucky and win the White House and the Senate.
It doesn’t looks likely that the Democrats will flip the Senate but it isn’t impossible either. If they do, their margin will be razor thin. That means that any legislation would need the approval of Senators like Joe Manchin (W. Va.). So don’t expect anything radical from this process. There’s a good chance, however, of using the reconciliation process to push some kind of green stimulus bill through Congress.
If Democrats only come close to Senate control — let’s say a 49-51 split — there may still be a chance of passing legislation of some sort. That would require coming up with something that Susan Collins and Lisa Murkowski would vote for. Again, it would probably have to take the form of some kind of spending or tax credit bill in order to make use of the reconciliation process and avoid a filibuster.
The Bottom line. There’s a joke that the good thing about banging your head against the wall is that it feels so good when you stop. For environmentalists, that would be the story of a Biden win. Even without Trump, making the progress we need on climate change will require a tremendous amount of hard work. Biden will have the advantage, however, of being able to leverage the positive trends, such as the declining cost of renewables and storage. He will also find many, though far from all, state governments willing to work with him.
With Trump in the White House, the federal government will be AWOL from climate policy, except to the extent it affirmatively gets in the way. Any progress in a Trump second term will happen in places other than the federal government. So climate progress will continue, but at a significantly slower rate. Given the urgency of the climate crisis, that’s especially unfortunate.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more