Eight Key Takeaways from the Biden Administration’s Executive Order Detailing Major Domestic and Foreign Policy on Climate Change

On January 27 President Biden issued an executive order (EO) beginning to implement his “all of government” U.S. domestic and foreign policy on climate change, carbon-neutral infrastructure investments, and environmental justice as well as stimulate demand for and jobs in clean energy industries. The EO places climate considerations at the forefront of federal decision-making and serves as a road map for climate-related actions to be taken across executive-level agencies. It builds on other EOs signed on President Biden’s first day in office, including recommitting the U.S. to rejoin the Paris Agreement and reviewing several in-process environmental regulations. Here are eight key takeaways.

1. Resetting greenhouse gas (GHG) emissions reduction targets. President Biden has committed to immediately resetting the U.S.’s nationally determined contribution (NDC) — the country’s GHG emissions reduction target under the Paris Agreement — to be presented at the next reconvened Climate Summit on Earth Day, April 22, 2021. This NDC will need to reflect the administration’s intentions for reducing GHG emissions across the economy, including the power generation, transportation, and oil and gas sectors.
2. Environmental justice in the foreground. The Biden administration has pledged to integrate environmental justice (EJ) considerations into all aspects of its climate and environmental policy, and the EO takes strides in that direction.
   • The EO revises the last major presidential executive order addressing EJ — EO 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (Feb. 11, 1994) — to create a White House Environmental Justice Interagency Council led by the Council on Environmental Quality (CEQ). The Interagency Council will “develop a strategy to address current and historic environmental injustice,” develop performance metrics to assess these issues, and publish an annual public performance scorecard to measure implementation. To assist further, the EO creates a White House Environmental Justice Advisory Council.
   • The EO also sets out federal agency responsibilities with regard to environmental justice. It directs the Environmental Protection Agency (EPA) to strengthen enforcement of environmental violations “with disproportionate impact on underserved communities” and create a community notification program to monitor ongoing pollution in real time. The EO also tasks EPA and the Department of Justice (DOJ) with developing an EJ enforcement strategy to “provide timely remedies for systemic environmental violations and contaminations, and injury to natural resource,” and directs DOJ to consider creating an Office of Environmental Justice to coordinate EJ activities across the Department. CEQ is also required to create a geospatial Climate and Economic Justice Screening Tool within six months of the EO and publish interactive maps each year to highlight disadvantaged communities.
   • Finally, the EO establishes the “Justice40 Initiative” with the goal of having 40 percent of the benefits of certain federal investments flow directly to disadvantaged communities and with specific focus on renewable energy and energy efficiency, transit, affordable and sustainable housing, training and workforce development, remediation of legacy pollution, and clean water infrastructure development. These are to be reflected in an annual Environmental Justice Scorecard.
3. Consider climate change and conservation in federal permitting decisions. The EO directs CEQ and the Office of Management and Budget (OMB) to take steps to ensure that i) federal infrastructure investment reduces “climate pollution” and ii) federal permitting decisions involving infrastructure “consider the effects of greenhouse gas emissions and climate change.” It also directs relevant agency heads to recommend steps for achieving a goal of conserving 30% or more of our lands and waters by 2030. The steps taken by CEQ, OMB, and other federal agencies are expected to increase climate change considerations and likely conservation during environmental reviews under the National Environmental Policy Act (NEPA) as compared to the previous administration’s NEPA overhaul finalized last summer.
4. New climate-oriented positions and task forces. President Biden has also established new positions to further implement administration climate policy, including these:
   • the Special Presidential Envoy for Climate, who will work with federal agencies to develop an international climate finance plan as well as a plan for integrating climate considerations into national security considerations
   • a White House Office of Domestic Climate Policy, which will coordinate all policy-making processes with respect to domestic climate policy issues
   • a National Climate Task Force, with the mission of facilitating “the organization and deployment of a Government-wide approach to combat the climate crisis”
   • an Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization to identify and deliver federal resources to “revitalize the economics of coal, oil and gas, and power plant communities”; specifically, the EO tasks this Interagency Working Group with submitting a report to the President within 60 days that describes all available mechanisms to prioritize grantmaking, loan programs, procurement, and other options to revitalize the economies of coal- and power-plant-dependent communities.

   The EO also commits to developing a Civilian Climate Corps “to mobilize the next generation of conservation and resilience workers and maximize the creation of accessible training opportunities and good jobs."

5. Government procurement strategy and standards to be aligned with climate goals — including carbon-emissions-free electricity by 2035 and providing electric vehicles across government fleets. The EO requires CEQ, OMB, GSA, and a number of cabinet secretaries to submit a plan to the National Climate Task Force within 90 days to “create good jobs and stimulate clean energy industries by revitalizing the Federal Government’s sustainability efforts.” The plan must aim to use procurement authorities to achieve or facilitate i) a carbon-pollution-free electricity sector by 2035 and ii) zero-emission vehicles across government fleets, including the United States Postal Service. The reference to “carbon pollution-free” indicates the EO contemplates continued fossil-fuel generation if carbon capture can be deployed. The plan is to include recommendations of “any additional legislation needed to accomplish” these objectives.
6. Increasing renewable energy on public lands and in offshore waters. The EO directs the Secretary of the Interior to review siting and permitting processes on public lands and in offshore waters to identify steps that may be taken to increase renewable energy production, with the goal of doubling offshore wind by 2030. In addition to consulting with relevant agencies, Interior is to engage with Tribal authorities regarding the development and management of renewable and conventional energy resources on Tribal lands.
7. Pause on new oil and natural gas leases. The Interior Secretary is also directed to pause approvals of new oil and natural gas leases on public lands or in offshore waters until Interior completes a review of federal oil and gas permitting and leasing practices in light of potential climate impacts. The review will consider whether to adjust royalties associated with coal, oil, and gas resources extracted from public lands and offshore waters to account for corresponding climate costs. There is no deadline to complete the review. An industry trade association has already filed a lawsuit in federal district court challenging this portion of the EO.
8. Identify fossil fuel subsidies to eliminate and prioritize investments in clean energy. Federal agencies are directed to identify fossil fuel subsidies they provide and to take steps to ensure that federal funding is not subsidizing fossil fuels directly. This includes directing OMB to eliminate fossil fuel subsidies from the budget request for FY 2022 and thereafter. The EO further directs agencies to take steps to ensure that federal funding is used to “spur innovation, commercialization, and deployment of clean energy technologies and infrastructure” and to prioritize such investments in future budget requests.

The EO is clearly designed to transition the domestic economy to one focused on clean energy development from generation to end use. The President prioritizes placing the United States into a leading international role to address climate issues and follows that with domestic directives to incentivize clean energy technologies and infrastructure while curbing fossil fuel use.

We note, however, that the EO does not invoke extraordinary emergency presidential powers and generally does not itself establish new rules and regulations; that is left to the agencies to develop as the EO directs or as the Congress may develop in new legislation. However, interested stakeholders should consider the EO carefully and seek to participate in the many public processes that will follow as the government implements the President’s directions.