On January 5th a special runoff election in the state of Georgia will determine who will fill the state’s two seats in the United States Senate and which political party, Republican or Democrat, will control the upper chamber of Congress. The runoff election will be the final act in a tumultuous election season, in which the parties have offered starkly different visions for the role of government, the future direction of America’s energy system, and how that system will impact our environment.
Crucially, the outcome of Georgia’s runoff election will determine the degree to which President-Elect Joe Biden may be able to count on the Senate’s support in enacting his energy platform, which aims for a carbon-free electricity sector by 2035. Bethany Davis Noll and Richard Revesz, regulatory experts whose work focuses on the legal tools available to presidents to pursue their agendas, take a look at the options available to Biden to pursue his energy agenda with, or without, help from the Senate.
Bethany Davis Noll is litigation director at the Institute for Policy Integrity at New York University School of Law. Richard Revesz is Dean Emeritus at the NYU School of Law and Director of the Institute for Policy Integrity.
Andy Stone: Welcome to the Energy Policy Now podcast, from the Kleinman Center for Energy Policy at the University of Pennsylvania. I’m Andy Stone. On January fifth, a special runoff election in the state of Georgia will determine who will fill the state’s two seats in the United States Senate, and which political party, Republican or Democrat, will control the upper chamber of Congress. The runoff election will be the final act in a tumultuous election season in which the political parties have offered starkly different visions for the role of government and in the context we’ll be talking about today, for the future direction of America’s energy system and how that system will impact our environment. In January, the country will have a new President who offers a progressive energy vision. Yet to enact some of the more ambitious parts of his energy plan, Joe Biden will need support from the Senate. Georgia’s runoff election will help clarify the degree to which Biden may get that support.
On today’s podcast, I’m welcoming back two guests whose work focuses on the balance of power in Washington, and on the legal tools available to Presidents to pursue their agendas. Bethany Davis Noll is Litigation Director at the Institute for Policy Integrity at New York University School of Law. Richard Revesz is Dean Emeritus at the NYU School of Law, and Director of the Institute for Policy Integrity. The two will take a look at the options available to Biden to pursue his energy agenda; with or without help from the Senate. Bethany and Ricky, welcome back to the podcast.
Richard Revesz: Thank you, Andy. It’s great to be back.
Bethany Davis Noll: Thanks, Andy. It’s great to be here.
Stone: So Ricky, let’s start with you. There’s been a lot of talk recently in the media about the Georgia runoff election for two contested Senate seats. In general, what advantage would a friendly Democratic majority in the Senate bring to President Biden, and how would the lack of a majority tie his hands?
Revesz: Those are great questions. So let me divide this, my answer, into four categories, and go in order of the timing when the issue will arise and become relevant. So first, a Democratic majority in the Senate would help President Biden and Vice President Harris in the process of executive branch appointments. There are roughly 1200 positions with the federal government that require Senate confirmation. We typically focus on the cabinet, but there are subcabinet positions and many other positions and cabinet departments and agencies. And that process will go a lot more smoothly with a Democratic majority. Otherwise, there’s going to have to be negotiating over the agenda and the order in which these hearings take place or the floor votes take place. And even though some Republican Senators have indicated that they would help President Biden form his cabinet, it’s not clear how much — whether this cooperation would extend to lower level positions and so on. It also might make it necessary for President Biden to discuss appointments with Republican Senators to a greater extent than would be the case if Democrats control the Senate. So it would make a big difference there.
Second, there’s going to be a significant stimulus spending bill to aid the economic recovery that’s a by-product of the very serious public health crisis that we’re living through now. And in terms of the subject of this podcast, Democratic control of the Senate would make it more likely that a bigger chunk of infrastructure spending is devoted to clean energy projects. So for example, transmission lines that bring renewable electricity to places where there’s demand for it. Charging stations for electric vehicles. Energy storage to facilitate the integration of renewables into the grid. My sense is there’s going to be some clean energy infrastructure spending, no matter which party controls the Senate. But I would expect that there’ll be more of it if there’s Democratic control of the Senate.
The third category involves efforts to undo Trump Administration regulations. What I have in mind here, a Congressional Review Act —approvals is a big topic, and we can come back to it later if you’d like.
And then the fourth category is significant substantive legislation. So for example, a comprehensive effort to control greenhouse gases and to promote a transition to a clean energy economy. The probability of that happening in the next Congress is reasonably low, regardless of which party ends up controlling the Senate, because in the Senate, this legislation would either need to get the support of 60 Senators to overcome the filibuster rule, or we’ll need to have the support of a majority of the Senators to get rid of the filibuster. And I don’t think — getting rid of the filibuster is such a momentous thing that I don’t think can be done on a 50-50 split. Because typically, there’ll be some Senator of the party who would not go along.
So I think really comprehensive, substantive legislation to address climate change and to do something significant on the clean energy front beyond infrastructure spending might have to await the 2022 elections, when it might become possible if the Democratic Party picks up additional Senate seats and retains control of the House.
Stone: You know, I want to go to that third point for just a moment, that you just mentioned. That was undoing Trump era regulations. And the two of you were on the podcast just this last July when we talked about some of the legal vulnerabilities of Trump’s energy and environmental policies, and how a future President might exploit those vulnerabilities to overturn Trump rules. This seems to be an area where a simple friendly majority in the Senate could be particularly helpful to Biden. Can you explain the vulnerabilities, and tell us which Trump rules could be overturned?
Revesz: Well, technically, any Trump rules that were promulgated in the last 60 legislative days of this Congress can be overturned. Now, this is a rule that’s very easy to state and hard to compute. We all know when that window opened, because we won’t know until Congress completes its legislative days. But most people think that this will be some time in June, probably. It was around mid-June in 2016. So there are a lot of significant rules that have already been finalized, and there are some that haven’t been finalized yet and that might be finalized.
So, for example, EPA’s repeal of the methane rule for oil and gas installations is one such rule. Its decision to open the Arctic National Wildlife Refuge for drilling is another example. There are two rules that I think would be very good candidates for CRA disapproval that haven’t actually been finalized yet, but the Administration said they would. What they called a Science Transparency Rule, which would make it very difficult for EPA to rely on epidemiological studies to justify regulation, and a rule on how cost-benefit analysis for Clean Air Act regulations should be conducted, which would make it difficult to count the co-benefits of regulation and would have a very negative effect in connection with both the regulation of local pollutants, and also of greenhouse gases.
So those are some examples, but there are many others. And the environmental and energy areas are not the only areas that have candidates for CRA disapprovals. Now, control of the Senate will make a difference here, in part because if Democrats don’t control the Senate, they still need to get 50 votes plus the Vice President’s tie break in order to disapprove something. So if they don’t control the Senate, for any disapproval to be a possibility, Democrats would have to pick Republican votes to get to 50. And then would need to pick up additional Republican votes to make up for any Democratic votes they might lose on a particular CRA.
Stone: And to clarify, the CRA only requires 50. There’s no 60 vote requirement for that.
Revesz: There is no 60 vote requirement for the CRA. There’s no filibuster rule. Now, so, 50 is the magic number. But having 50 Democratic Senators doesn’t guarantee that all of them would vote for CRA and these rules. My guess is that probably at least 48 would. Sometimes 50 would. But Democrats might need to pick up some Republican Senators from time to time. And if they don’t have 50, they’ll always need to pick up at least some Republican Senators to get to 50, and then some more to make up for any Democratic Senators they might lose. In some cases they won’t lose any, but sometimes they might.
Now, not controlling the Senate also will slow down the CRA disapproval process. Because if Democrats control the Senate, they’ll control the agenda of the Senate, and they’ll be able to bring the CRA disapprovals before the Senate in whatever time and order they choose. If they don’t, Republicans could bottle CRA disapproval resolutions in committee for up to 20 days, calendar days. And after 20 days, a disapproval resolution can be brought to the floor on the vote of 30 Senators. Which presumably wouldn’t be a problem. But basically, Republicans would delay every resolution 20 days by basically letting them sit in committees, and not having the committees act. And if Democrats control the Senate, this delay wouldn’t be an issue.
Stone: Now, I’m recalling our conversation in July when it came up, the fact that to use the CRA, the new President would actually need to make use of that during the first 60 legislative days of his office. Right? So that 20-day delay that you just mentioned would be significant, and potentially a big barrier, it sounds like.
Revesz: It could be significant. I mean, how much of a barrier, you know, I’m not sure. I mean, it might make it important to actually present as many CRA disapproval resolutions as quickly as possible, so the 20 days start counting. But it would slow things down. And it might mean that fewer regulations end up getting disapproved under the CRA.
Stone: Now there’s another issue also here that we’ve talked about in the past, and that’s that even if the CRA is generally available, President Biden has enough Senate seats to push this through, he also has the decision to make whether he actually wants to use the tool. And that’s because there’s a certain band width limitation that he has to take into account, of just how much the Senate can get done. So, what is that limitation? And do you think Biden would ask the Senate to actually use the CRA, and why?
Revesz: I think — I mean, some of these rules are so obnoxious and so terrible and so detrimental to the Biden Administration’s ability to get its own regulatory agenda going — several for example, if EPA finalized its science rule and its cost-benefit rule for air rules, those rules would have to be repeals or notice-and-comment rulemaking. That could take quite a bit of time before substantive regulations can be put in place that rely on good analysis. So I think it’s a very attractive tool, and I think it would make sense to be able to just clear the underbrush of some of this really, really bad regulatory policy, quickly.
Now, obviously this would compete — I mean, any Senate time, it requires ten hours of Senate debate per CRA disapproval resolution. It would take up time that could otherwise be devoted to confirming executive branch officials. If Democrats don’t control the Senate, the control of the agenda for these confirmations would be in the hands of Mitch McConnell. And, you know, he will do whatever he thought was politically expedient, I suppose, for him and the Republican Party. Which might not be to prioritize these confirmations in the way that a Democratic majority would. But in any event, there may be some tradeoff between Senate time devoted to the CRA and Senate time devoted to confirming executive branch officials.
Stone: So let’s be clear on this — and this is something you mentioned a few moments ago. Even a friendly filibuster-proof Senate majority is no guarantee of legislative success. And I want to bring up the example of the 2009 Waxman-Markey Carbon Cap and Trade Bill, which passed the House but never made it to the floor in the Senate even though the Democrats had, I believe, 57 or 58 seats in that very early part of the Obama Administration. So what does that experience say about Biden’s real chance to move big legislative packages related to energy and the environment and climate, during his administration?
Revesz: So, I’ll carve out infrastructure spending. I talked about it. I think both parties probably would come together on some bill. But in terms of something that looks like an economy-wide approach to do with greenhouse gases, I think the prospects in the current world of coming up with a legislative solution to get 60 votes are slim. Because the parties are so polarized and so deeply divided on this issue. I think if Democrats had 52 or 53 Senate seats, the more likely scenario would be that they would decide to eliminate the Senate filibuster and then pass broad legislation on a simple majority. But I don’t see that as being a likely possibility, even on a 50-50 Senate. And it’s obviously impossible if Democrats don’t control the Senate.
Stone: Bethany, I’d like to turn to you here. You know, we’ve been talking about the legislative process, about Biden working alongside the Senate to get some of his agenda, his energy and environmental agenda, through. But again, if he can’t rely on the legislative process, if he can’t rely on Congress, he has to turn to regulation and to the courts. And this gets to the heart of the work that the two of you do. Can you explain how Biden might use the regulatory agencies such as, for example, the EPA and the courts, to push his agenda through?
Davis Noll: Yeah. I mean, in comparison to legislation, with regulation, a President just needs to direct his agency’s priorities. You know, as long as statutory authority exists for the agency to act, then the agencies will simply need to follow the rules–you know, the procedural and statutory rules that apply to those agencies—in order to implement those policies. There’s the notice-and-comment requirement in the Administrative Procedure Act, the requirement that agencies give a reasoned explanation for their decision, and the requirement that they act within their statutory authority.
So this move which we’ll likely see with the Biden Administration towards using agencies to make policy has been going on for decades. And, you know, definitely we saw it with the Trump Administration. And in the past, in study after study, before President Trump, scholars have found that agency decisions were upheld in court about 70 percent of the time. So this kind of win rate generally supports the view that Presidents can generally count on their policies being upheld in court, and can use their agencies to make policy.
But of course, the win rate for the Trump Administration has been starkly different, as we’ve shown on a tracker on Policy Integrity’s web site. But that just reinforces my point. As long as agencies act within the bounds of their statutes, and follow these basic procedural rules, they can count on winning in court. And following these basic procedural rules just isn’t something that we saw in many of the rules coming out of the Trump Administration.
Stone: So it’s really important to make sure that those rules hold legal water, essentially.
Davis Noll: Right.
Stone: Yeah. Okay. So assuming for the moment that Biden doesn’t have the support of a friendly Senate, then how might he also use the courts to roll back Trump’s major regulatory efforts? And I’m thinking about the Clean Power Plan replacement, methane rules, weaker car fuel efficiency standards, that kind of stuff.
Davis Noll: Yeah. I mean, all these rules, all these rollbacks, are in litigation right now. And we’re still months away from a decision on several of these rules. You know, with the methane rules and the weakened vehicle emissions rule, and so on. And so the Biden Administration will have the option of asking the courts to put those cases on pause while it reconsiders and potentially rewrites the rules. Alternatively, it could decide to go forward with the litigation after it makes a judgment call about how likely it is that a court would strike down the Trump era rule?
Stone: So, Ricky, if Biden succeeds in rolling back, for example, the ACE rule, which was the replacement for the Clean Power Plan, does that mean that the Clean Power Plan would be back in effect?
Revesz: Well, the Clean Power Plan would technically be back, in effect. But the deadlines for various actions have passed. So the agency would, at the very least, have to redo the deadlines. And my sense is that energy markets have evolved significantly beyond where they were when the Clean Power Plant was promulgated. So the agency, one way or the other, would presumably look into how to come up with a modern replacement that both responded to the current state of the markets, and also had more influential targets given the Biden-Harris goals.
Stone: So Bethany, over the last — I guess it’s a couple weeks or so — it’s come out that the Bureau of Land Management may be auctioning off oil leases in the Alaska National Wildlife Refuge. And that might actually happen — according to the calendar, it could potentially happen just a couple of days before Trump would leave office. If these leases are sold, would they survive under Biden? Meaning, could he not respect those leases, or however that would play out?
Davis Noll: Yeah. I mean, I think the first question is whether these lease sales will even happen. You know, the decision to put these up for auction was only published on November 17th. And it provides for 30 days of comment. And after the agency considers the comments that are put in on that proposal, it needs to publish a notice of sale 30 days before the actual sale. So if you look at the calendar, it only has a couple of days to consider comments before it publishes the notice of sale, if this Administration wants to complete the sale before the Inauguration. And that would just be real evidence that the agency wasn’t considering comments. And we have seen a lot of pushback in court, where agencies aren’t taking the notice-and-comment rules seriously.
Meanwhile, there’s pending litigation over the environmental review that the Administration conducted over this decision. And there are lots of other steps in the process, including permits and so on, that would be required to go through review. And I definitely wouldn’t say that the Biden Administration would not honor a legal lease. But it could potentially take the environmental review of these actions more seriously.
Stone: So Ricky, let’s turn to Biden’s likely regulatory efforts or focus. What new regulations do you expect him to develop early in his term?
Revesz: Well, on the climate change front, I would expect him to focus on vehicle emission standards. I mean, the Obama standards only went through model year 2025, which is now right around the corner. So even if they still were in effect, we would have to start focusing on the future. And because that is the biggest single sector of the economy in terms of greenhouse gas emissions, I expect that will be a serious focus. Greenhouse gas emissions from power plants will be a focus. I would expect that the Biden Administration would try to extend greenhouse gas regulation to other industrial sectors. Maybe refineries, maybe cement plants, maybe others. And will basically look at large sources of greenhouse gas emissions, and see where significant reductions can take place. There’s statutory authority to regulate in these areas, and I would expect that EPA will be ambitious in its use of these statutory authorities.
Also, there’ll be regulations in other parts of the government. Energy efficiency standards out of the energy department. The Federal Energy Regulatory Commission has recently shown some interest in potential carbon pricing in wholesale markets. Disclosure requirements by the Securities and Exchange Commission. So I would imagine there’ll be sort of an across-the-government effort for t athlete EPA, it will focus on the big sources of greenhouse gas emissions.
Stone: Bethany, also in our conversation in July, the two of you actually emphasized the importance of a new President getting started right away in developing new rules. You really emphasized the importance of this. What will Biden need to do to get started, and to insure that whatever he enacts will survive beyond his Presidency? Because that’s really been the issue with regulation in the last two Presidents. They come up with the regulations, and the new President threatens or actually does undo some of those rules.
Davis Noll: Yeah. The threat of rollbacks is real, and we’re seeing it now again. There’s going to be a new era of rollbacks starting soon, obviously. That’s what we’ve been talking about. So that means that there’s intense time pressure on the beginning of a new President’s term. Because the President can’t guarantee that he’ll win the next term. So he has to plan for the fact that the regulations need to come out as soon as possible. And the reason to do that is because the President wants to make sure the rule gets reviewed in court with a DOJ that he controls defending the rule. And we want to also make sure, a President would also want to make sure, that the rule was implemented. So it’s less easy to suspend it or put the deadlines off like we saw when the Trump Administration came in. You know, this time pressure means that a President needs to hit the ground running right now and have major rules promulgated probably within the first couple of years.
Stone: And if that doesn’t happen, does that just mean essentially that anything that the President does, if it’s still in the courts, it’s all game for a President, particularly one from an opposing party, to undo it in the future?
Davis Noll: Yeah. It’s whiplash time.
Revesz: Well, but the President — I mean, obviously this is all different if a Democratic President is elected in 2024. It’s difficult for one-term Presidents to have their major regulatory priorities stick. But it’s not difficult for two-term Presidents to accomplish that as long as they get the work mostly done in the first term. You know, I mean, the Obama Administration was ambitious both terms. It’s just that the things from the first term stuck, and the things from the second term ended up caught up in litigation. But obviously if Hillary Clinton had been elected, a lot of the things from the second term would have stuck, too.
Davis Noll: Yeah. And, you know, if there’s a second Democratic Administration, then the first couple of years of that term are a good time to promulgate rules. There’ll be enough time to get them implemented in that four-year term, and to get them reviewed in court. It’s just that right now, nobody knows. So it’s good to plan and think about this time pressure.
Stone: All right. So, Beth, let me ask you one final question here. During the Trump Administration, states and cities have had to really step up themselves to act on climate change. Do you think that under Biden, they’ll continue to work in this same way?
Davis Noll: Yeah. I mean, there’s a tremendous potential to cut greenhouse gas emissions at the local level. Many cities and states have set a course of targets. You know, there was a lot of attention paid to this after President Trump won. And there’s still a lot that can be done there. You know, we’ve got cutting emissions on the grid, and in buildings and building efficiency. And, you know, focusing on state and local level emissions is also a good way to make sure that harmful local air pollutants, which disproportionately harm already disadvantaged communities, remains the focus. So there’s a lot of progress that can be made on this front, and it makes sense to continue that work aggressively.
Stone: Bethany and Ricky, thanks for talking.
Revesz: Thank you so much.
Davis Noll: Thanks for having us.