Category: Natural Resource Policy

What to Expect at COP-26 in Glasgow

Next week, after a few days in London, I will fly to Glasgow with my team from the Harvard Project on Climate Agreements (HPCA) to participate in the 26th meeting of the Conference of the Parties (COP-26) of the United Nations Framework Convention on Climate Change (UNFCCC).  One could write a book (and some have) about the details of these annual negotiations, which will take place this year in Glasgow over the period November 1-12 (or later, as the delegates never seem to finish on time).

As long-time readers of this blog know, at the annual COPs my HPCA team and I sponsor one or more “side event” panel sessions, make presentations at the pavilions of some of the major countries, and participate in meetings with various country negotiating teams, multilateral organizations, NGOs, academics, and the press.  At the end of this essay, I provide information about what we’re doing at the COP this year, and how you can observe it via the Internet.

Big Issues in Glasgow

For now, I would like to provide a brief guide to what to expect in Glasgow.  In doing this, I have tried hard to “stay out of the weeds,” and describe just the highlights.

So, what are the big issues for this first COP in two years? (The 2020 COP – also planned to take place in Glasgow – was cancelled due to the pandemic.)  I categorize what I consider to be the big issues in four categories:  (1) potential big stories for the popular press; (2) major issues for many of the delegates; (3) issues for the policy wonks; and (4) “the elephant in the room.”

Potential Big Stories for the Popular Press

One of the big stories for the press is substantive and one is logistical.  First, on substance, this COP is particularly important because it brings with it the first implementation of a key element of the Paris Agreement – renewal and presumably ratcheting up of national emissions reduction pledges every five years.  The substantive issue which is likely to dominate most stories in the popular press during the two weeks of the COP and likely to dominate every story when the COP concludes is whether or not the newly updated Nationally Determined Contributions (NDCs) from some of the major emitters – such as the European Union, the United States, China, Canada, the UK, and Japan, – combined with the existing, but not yet updated NDCs from other major emitters – India, Russia, and Brazil – together put the world on track to achieve the Paris Agreement’s major target of limiting warming in this century to 2o C, and, even more ambitious, to just 1.5o C. The answer, according to a report just released by the United Nations, is that even with the enhanced 2030 targets, as well as the many 2050 net-zero aspirations, the world is on track for a temperature increase of about 2.7o C this century.  (And this assumes that every country puts in place effective polices that will fully achieve its targets.)

The other potential big story – which has not yet received press attention – is the possibility that COP-26 in Glasgow may turn out to be a logistical nightmare, perhaps even on the scale of the logistical meltdown at COP-15 in Copenhagen in 2009.  In that earlier COP, the organizers – the UNFCCC Secretariat and the hosts, the Danish government – approved a list of some 40,000 observers from 900 official, accredited organizations around the world, knowing that the Bella Center could accommodate at most 15,000 persons at any one time.  The result was that thousands of people – including not only NGO representatives, but also government negotiators – stood in line outside of the Bella Center in the bitter cold, waiting 8-10 hours to get inside to receive their credentials.  Thousands of others never got inside, despite their 8-hour wait.  They flew home without having participated.  These are not exaggerations.  I wrote about this in 2009 when I returned from COP-15.

[Here’s some brief but interesting follow-up on the 2009 Copenhagen logistical mess. After this essay appeared yesterday, I received a message from someone who was very much on the inside of the Copenhagen arrangements and the discussions between the UNFCCC Secretariat and the Danish government. Among other problems, this person notes that when the Secretariat tried to limit NGO registrations in advance, many countries put NGO people on their delegations instead — with one delegation ballooning to 800 members — and country delegates could not be refused entry.]

This year, as many as 20,000 credentialed participants are expected to show up at the COP site in Glasgow for entrance to the secure area, called the “blue zone,” but rumor (which the UK hosts have refused to confirm or deny) has it that due to reduced capacity because of COVID only 10,000 people will be allowed inside each day, beginning presumably with the 8,000 government delegates, leaving precious few openings and tremendous competition among the 10,000 or so credentialed observers from civil society for 2,000 available spaces each day.  In fact, UK officials have acknowledged that once 5,000 people have been admitted each day, some undefined formula will kick in, which will eventually result in a “one-out-one-in” situation.  Needless to say, I hope the logistical nightmare does not materialize – and it may not, because many observers I know have decided not to attend.  But I’m cautiously optimistic, and so my team and I are still planning to attend (with fingers crossed).

There’s one other issue that may get substantial press attention — whether or not a post-COP statement from the Parties to the Paris Agreement will commit to a global phase-out of the extraction and burning of coal. This is unlikely to happen. Leaders from the Group of 20 major economies at their meeting in Rome failed to include such a statement their post-G20 communique. Opposition came from Australia, China, India, Russia, Saudi Arabia, and Turkey. Without a positive signal from the G-20 leaders, agreement on this in Glasgow will be very difficult. What might be possible, however, would be a general statement from the Glasgow conference about “phasing down” rather than “phasing out” coal.

Major Issues for Many of the Delegates

About 80% of the national delegations to the climate negotiations are from developing countries (on the order of 157 out of 197), and so the issues that are of greatest significance to those delegations are particularly important.  Two stand out.

One is climate finance, which refers to the commitment made in Copenhagen in 2009 that by 2020, developed countries would begin to contribute $100 billion per year to developing countries to help finance their greenhouse gas (GHG) emissions mitigation and their adaption to climate change.  We’re about to enter the year 2022, but the $100/billion has not materialized, with some estimates pegging the combined pledges to be about $80 billion per year over the next few years.  So that is a huge issue for developing countries.  A closely related issue is whether and when the developed countries will make up for what will be the historic shortfall, even if the $100 billion/year is eventually achieved.

The other issue that is a major one for some developing countries, in particular those most vulnerable to the impacts of climate change, is characterized in the negotiations as “Loss and Damage,” which has been an important source of controversy in the annual talks for the past ten years or so.  This phrase refers to the range of damages associated with climate change, since even if emissions are reduced to zero tomorrow morning, damages will continue due to the long lag time of GHGs in the atmosphere, particularly CO2 with its atmospheric half-life of more than 100 years.  The controversy has been with regard to who should pay for such loss and damage, with the focus on those most responsible for climate change, namely the countries with the greatest contributions to the accumulated stock of GHGs in the atmosphere – the United States and other large, wealthy countries, plus China. 

This has been controversial because, on the one hand, it is absolutely (and understandably) viewed as essential from countries such as the small island states, whereas countries such as the USA, China, and the EU member states worry that talk of “loss and damage” raises the specter of unlimited legal liability.  Indeed, at some climate talks before the Paris Agreement (2015), debates on this issue nearly caused the talks to collapse.  But the issue was finessed in the Paris Agreement’s Article 8, which recognizes the importance of loss and damage, but then eliminated the most contentious aspects in Decision 52 (the Decision document accompanies the Agreement), where the Parties agreed that loss and damage “does not involve or provide a basis for any liability or compensation.”  As one can understand, some countries are not happy with this apparent resolution, and so the issue will be raised again Glasgow.

Issues for Policy Wonks

There are two issues that policy wonks – both from the government delegations and the observer organizations from civil society (like me) – will be thinking about and working on.  One is the question of whether China and the United States can return to the spirit and reality of cooperation that characterized their relationship during the Obama years, when their joint initiatives were absolutely essential to the successful completion of the Paris Agreement.  This was before such cooperation evolved into confrontation during the Trump years, which sadly has continued during the Biden year.  Sometimes it seems that “America First” has evolved into “American Manufacturing First.”

The other issue that is receiving a great deal of attention is the one part of the Paris Agreement for which the accompanying “rulebook” has not been finalized – Article 6.  A little background may help.  The Paris Agreement provided a promising, fresh approach by instituting a bottom-up strategy in which all participating countries specify their own targets, consistent with their national circumstances and domestic political realities.  This convinced many nations to sign up. Countries that joined the Paris Agreement represent 97% of global GHG emissions, compared with 14% under the second commitment period of the top-down Kyoto Protocol.  But it also gave every country an incentive to minimize its own actions while benefiting from other nations’ emission reductions.

So, are there ways to persuade nations to increase their commitments over time? One key strategy is linking national policies, so that emitters can buy and sell carbon emissions allowances or credits across borders.  Such linking need not be restricted to pairs of cap-and-trade systems. Rather, heterogeneous linkage among cap-and-trade, carbon taxes and performance standards is feasible.  Such linkage lowers costs, enabling countries to be more ambitious. One study estimated that linkage could, in theory, reduce compliance costs by 75%.

But for such systems to be meaningful, each country’s steps must be correctly counted toward its national target under the Paris Agreement, with no double-counting. This is where Article 6 comes in. Writing the rules for this article was the primary task for negotiators in Madrid (28 other articles were completed at the 2018 COP in Katowice, Poland).  Unfortunately, Brazil and a few other countries insisted on adopting accounting loopholes that made it impossible to reach agreement in Madrid on Article 6.  Negotiators had an opportunity to define clear and consistent guidance for accounting for emissions transfers but failed to close a deal.  On the other hand, if they had adopted guidance that extended much beyond basic accounting rules, as some countries wanted, the result could have been restrictive requirements that would actually impede effective linkage.  This would have made it more expensive, not less, for nations to achieve their Paris targets.  So, with no closure in Madrid, the baton for completing Article 6 was passed to COP-26 in Glasgow.  The good news is that very recently, Brazil has signaled that it may be open to compromise.

Another issue that policy wonks are watching is associated with cutting global emissions of methane — an extremely potent greenhouse gas, although relatively short-lived in the atmosphere. There will be a success in this regard in Glasgow, because leaders from a number of important countries are likely to pledge at COP-26 to cut methane emissions by at least 30% by 2030, a goal that was previously unveiled by the United States and the European Union in September. More than a dozen countries have now signed the pact. For its part, the Biden administration will impose aggressive regulations on methane leaking from all existing oil and gas wells and pipelines throughout the United States, an approach which is more ambitious than the Obama administration’s regulation, subsequently withdrawn by former President Trump, to regulate wells built since 2015. Unfortunately, the world’s top methane emitter, China, has not joined the international pledge.

One other potentially very important issue is not actually associated directly with COP-26 itself, but rather with the reality that prior to the beginning of the Glasgow sessions, the Biden administration announced a trade agreement with the European Union which incorporates the concept of using tariffs on trade to cut carbon emissions. The agreement is intended to cut imports of steel that is particularly carbon intensive in its production (such as from China and Brazil). Such agreements may turn out to be a very important complement (or even substitute) for the Paris Agreement. I hope to write more about carbon tariffs (border adjustments) in a forthcoming essay at this blog. 

The Elephant in the Room

For everyone – the press, the delegates, and observers of all kinds – a major question in Glasgow will be whether the United States’s ambitious NDC – a 50-52% reduction of GHG emissions by 2030 below the 2005 level – is truly achievable with reasonably anticipated policies.  I’ve written about this in the past, so suffice it to say that this question boils down to whether the Biden administration – in the real world of current Congressional politics – is able to sign enacted legislation that can make dramatic strides toward that impressive 2030 target.  The Biden administration has included in its scaled-down “reconciliation bill” a $555-billion spending plan of tax breaks, tax credits, and other subsidies for various approaches and types of clean energy generation and use, validating once again that U.S. politicians are more comfortable giving out benefits than costs. Importantly, what would have been an effective program for green electricity generation has been scrapped, and fees on methane releases may or may not survive. Indeed, a new White House plan for achieving the 2030 target relies in part on carbon removal and unknown technologies.

So what can the Biden administration accomplish via regulations and executive orders?  See my comments above regarding a new methane rule. But the regulatory approach, in general, is particularly challenging because legal challenges from the political right are much more likely to be successful during the Biden years than they were during the Obama years, given the 245 Trump-appointed Federal judges (>25% of the total federal judiciary) and the 6-3 conservative majority on the Supreme Court.

In this regard, it is worth noting that a recent report from the Rhodium Group calculates that even if the scaled-back version of the climate and social spending bill now before Congress is signed into law, new action by the states plus a significant number of new rules and regulations will be required (for sectors that have yet to be regulated, including chemicals, natural gas, and refineries) in order to have a chance of achieving the Biden administration’s NDC target.  Also, regulations for power plant emissions would have to be more stringent than the Obama-era predecessor (the Clean Power Plan), and would have to include mandates for carbon capture and storage for existing power plants.  Despite all of this, it can be anticipated that President Biden’s climate team in Glasgow will seek to assure the delegates that the U.S. is on track to achieve its 2030 target.

Looking Forward to COP-26

In addition to my making presentations at COP-26 in Glasgow at the pavilions of some of the major countries, and participating in meetings with various country delegations, multilateral organizations, NGOs, academics, and the press, the Harvard Project on Climate Agreements will conduct two panel events in connection with COP-26.

The first one – Prospects for Article 6: COP-26 and Beyond – will be a webinar co-sponsored with the Enel Foundation, held on Monday, November 1, 2021, 9:00–10:15 am (U.S. Eastern Daylight Time).  For more details, including registration link, here.

The second one – Securing Climate Ambition with Cooperative Approaches: Options under Article 6 – will be an in-person event held at COP-26.  This event will be co-sponsored with the Enel Foundation and the Foundation Environment – Law Society (FURG).  It will take place on Wednesday, November 10, 2021, 4:45–6:00 pm Greenwich Mean Time, in Clyde Auditorium, within the “Blue Zone” – the secure area – at COP-26 in Glasgow.  More details are available here.

Both events will be based, in part, on a recent discussion paper released by the Harvard Project, written by Michael Mehling, and titled “Advancing International Cooperation under the Paris Agreement: Issues and Options for Article 6.” In this interesting and helpful new paper, Michael lays out the key issues in the ongoing negotiations on Article 6, and examines promising options for resolving some of those issues.  The complete paper can be downloaded here.  Michael will present highlights of the paper at each of the above events. At both of these events, following Michael Mehling’s presentation, we will hold a panel discussion, which will include:  Daniele Agostini, Head of Low Carbon and European Energy Policies, Enel; Kelley Kizzier, Vice President for Global Climate, Environmental Defense Fund; Michael Mehling, Deputy Director, Center for Energy and Environmental Policy Research, Massachusetts Institute of Technology; and myself (and quite possibly some others).

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Insights about Climate Change Policy from Europe, New Zealand, and the USA

Suzi Kerr, the chief economist at the Environmental Defense Fund (EDF) and founder of Motu Economic and Public Policy Research, a think tank in her home country of New Zealand, shares her perspectives on climate change policy in the latest episode of our podcast, “Environmental Insights: Discussions on Policy and Practice from the Harvard Environmental Economics Program.”  I hope you can find time to listen to our conversation here.

In these podcasts, I converse with leading experts from academia, government, industry, and NGOs.  I’m pleased to say that my long-time colleague and friend (and former student), Suzi Kerr, fits well in this group with her abundant experience in academia and NGOs.

Dr. Kerr was involved in the early design of New Zealand’s successful emissions trading system (ETS), which began in 2008, and is similar in some ways to California’s cap-and-trade system, about which I have written many times at this blog and elsewhere.

“It was the second [ETS] in the world and it’s economy wide. It’s what we call upstream, so it covers…basically all fossil fuels and most other emissions in New Zealand. And one of the highlights I think is that it covers the forestry sector, and New Zealand is still probably the one that covers that most comprehensively.  A lot of what we were trying to do was experiment and learn so that others could learn from our experience.”

As Europe prepares to begin implementation in 2023 of its Carbon Border Adjustment Mechanism (CBAM), intended to mitigate carbon leakage and protect competitiveness while remaining in compliance with World Trade Organization (WTO) rules, Kerr expresses her belief that while the CBAM is lower cost to taxpayers and provides advantages over output-based allocation measures, there are many challenges standing in its way.

“The logistical issues of bringing in a CBAM are huge. If we all had carbon pricing, it would be pretty easy, but we don’t. We have a whole mix of policies in different countries. Some have carbon pricing, but [other nations have] other policies. That complexity is huge, and the other issue is equity across countries. Does it really make sense for us to be charging countries who have low policy stringency because they’re very poor?,” she says. “I think it’s critically important that the EU couple any introduction of CBAM with really active support for the poorest countries so that they are supported to have a climate transition rather than expected to do that entirely on their own.”

In the U.S., the Biden Administration has announced its new nationally determined contribution (NDC) under terms of the Paris Agreement, with a pledge to cut greenhouse gas emissions by 50 to 52 percent below 2005 levels by 2030.  I ask Suzi Kerr whether this target is achievable, given domestic U.S. politics.  She responds that she judges the pledge to be credible, but difficult to achieve.

“The research and the modeling all says it can be done. It’s certainly possible and a lot of it can even be done at very low cost. Whether it will be done is a much more challenging question and that’s where it gets really hard – actually implementing the policies that are effective. Even if you have the political will, that’s a difficult thing,” she remarks. “In general, history teaches us that policies are almost always less effective than we think they’re going to be.”

My complete conversation with Suzi Kerr is the 27th episode in the Environmental Insights series, with future episodes scheduled to drop each month.  You can find a transcript of our conversation at the website of the Harvard Environmental Economics Program.  Previous episodes have featured conversations with:

“Environmental Insights” is hosted on SoundCloud, and is also available on iTunes, Pocket Casts, Spotify, and Stitcher.

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International Climate Change Policy & Action in the Biden Administration

Many of us are still reeling from the January 6th insurrection at the Capitol, incited by the current President of the United States.  And our thoughts are now dominated by yesterday’s impeachment of the President and the ongoing threats of violence in Washington and across the country from his extremist supporters.  But in less than one week, a new President will be sworn into office, and so it is prudent to think about the incoming administration and the challenges it will face in regard to climate change policy.  This is the focus of my essay published today by Lawfare, the superb host for analysis and debate about the law, politics, and policy of international security.  With the permission of the Lawfare editors, I’m pleased to be able to reproduce my essay below (with just very minor edits, namely, the insertion of some section headings for purposes of clarity and consistency with the standard style in my blog).  I hope you find this of interest.

L A W F A R E

The Biden Administration and International Climate Change Policy & Action

By Robert N. Stavins

Thursday, January 14, 2021

Former Secretary of State John Kerry, with grand-daughter in tow, signs the Paris Agreement in 2016 (UN Photo by Amanda Voisard)

On Jan. 20, Joe Biden will be inaugurated as the 46th president of the United States. He will face an unprecedented set of challenges, including global climate change—one of four stated policy priorities of his administration (along with the coronavirus pandemic, economic recovery and racial equity)—in addition to the immediate issue of the looming Senate trial of President Trump and ongoing threats of violence from extremist supporters. Because climate change is a global commons problem and international cooperation is necessary to limit free-rider incentives, President-elect Biden has pledged to immediately initiate the process of rejoining the Paris Agreement (from which President Trump withdrew the United States on Nov. 4, 2020—the earliest date permitted by the agreement). Thirty days after the necessary paperwork is filed with the United Nations, the United States will again be a party to the agreement. That’s the easy part. The hard part is coming up with a quantitative statement of how and by how much U.S. emissions of greenhouse gases will be reduced over time.

The Historical Context

To fully appreciate the challenge the new administration will face, it is helpful to reflect on the history of international negotiations that brought us to this point. At the Earth Summit in Rio de Janeiro in 1992, the U.N. Framework Convention on Climate Change (UNFCCC) was first negotiated, committing parties to achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would “prevent dangerous anthropogenic interference with the climate system.” Three years later in Berlin at the first annual Conference of the Parties, it was agreed that the wealthier countries (listed in UNFCCC Annex I) would commit to targets and timetables for emission reductions, but not the other 129 (largely developing) countries. This was an attempt to provide for distributional equity among nations —recognizing that the industrialized countries were responsible for the lion’s share of accumulated greenhouse gases in the atmosphere, and by virtue of their wealth were more capable of taking action. Two years after that, in 1997, the Kyoto Protocol was enacted, codifying these objectives with quantitative targets for Annex I countries only.

The Clinton administration negotiated the protocol with considerable enthusiasm under the leadership of Vice President Gore, but it did not submit the protocol to the Senate for possible ratification, knowing that the protocol’s lack of any emissions-reduction responsibility for the large emerging economies (China, India, Brazil, Korea, South Africa, Mexico and Indonesia) meant it would fail in the Senate. This was a reasonable assumption, given that the Byrd-Hagel Resolution, which said as much, had passed the Senate by a vote of 95-0 just four months before the Kyoto conference.

The Kyoto Protocol was highly flawed. First, the Annex I countries alone could not reduce global emissions, despite a particularly severe target for the U.S., as the significant growth in emissions came from the emerging economies. Second, because the protocol excluded most countries (in particular, developing countries with relatively low costs of emissions mitigation), the costs were vastly greater than need be—four times the cost-effective level by conservative estimates. Third, it was questionable whether distributional equity was even achieved, given that 50 non-Annex I countries had greater per-capita income than the poorest of Annex I nations. So, the United States never ratified Kyoto, and eventually Australia, Canada, Japan and Russia dropped out, leaving the European Union and New Zealand as the only Annex I parties participating (together accounting for 14 percent of global emissions).

Almost two decades after Kyoto, a fundamentally different approach to international climate cooperation was taken by the Paris Agreement of 2015, which was developed under the joint leadership of the U.S. and China during the Obama administration.

The Paris Agreement

The key attribute of the Paris Agreement is its hybrid structure, combining top-down (legally binding) and bottom-up elements. The former are largely procedural (but binding under international law), including a requirement in Article 4 that countries submit nationally determined contributions (NDCs), statements of their emissions reductions from 2020 to 2025/2030), and update them by the end of 2020 and every five years thereafter. The key bottom-up element consists of the set of submitted NDCs, which are not part of the agreement but, rather, are assembled in a separate public registry. The notion is that the NDCs—unlike the negotiated Kyoto targets—arise from or are at least consistent with domestic policies, goals and politics in their respective countries. The “bindingness” of the targets, therefore, comes not from the Paris Agreement itself, but from any domestic laws and regulations put in place to achieve the NDCs. It was because of this structure, which avoided binding quantitative targets in the agreement itself, that the Obama administration felt it was able to ratify it as an executive agreement, without Senate approval.

One year after its approval in Paris, the agreement came into force in November 2016, when the threshold of 55 countries representing at least 55 percent of global emissions had ratified it. Remarkably, it had required seven years for the Kyoto Protocol to achieve the same threshold for coming into force. What caused the exceptionally rapid accumulation of Paris ratifications? The explanation lies in the fact that the agreement also provides that once it comes into force, there is a four-year delay before any ratifying country may withdraw. So, from 2015 to 2016, international concern that Donald Trump might be elected president and live up to his promise to pull the U.S. out of the agreement led countries to move as fast as they could, and the Paris Agreement came into force on Nov. 4, 2016. So, global fear of Trump gets credit (and explains why Trump’s withdrawal date of Nov. 4, 2020, was the earliest allowed).

The U.S. withdrawal from the agreement had no direct effect on domestic greenhouse gas emissions. Those emissions were affected by the Trump administration’s rollbacks of Obama-era domestic climate policies. The greatest concern was that such action by the U.S. would lead China, India, Brazil and other emerging economies to rethink their Paris pledges. But this did not happen, as far as we know. Of course, the comparison ought to be with what those countries would have done had the U.S. not withdrawn, but such a comparison would be with an unobservable hypothetical. It is too soon to assess achievement with the initial set of NDCs, since those describe reductions over the period 2020 to 2025/30, but as of early January 2021, only 23 countries had submitted their updated NDCs, due at the end of 2020.

The Challenge for the Biden Administration

As I said at the outset, the easy part will be submitting the necessary paperwork on Jan. 20 to rejoin the Paris Agreement, but the hard part will be coming up with the new U.S. NDC—a quantitative statement of how and by how much U.S. greenhouse gas emissions will be reduced over time. This will be challenging because the new NDC will need to be sufficiently ambitious to satisfy (at least to some degree) both domestic green groups and some of the key countries of the international community (despite the likelihood that Biden and his special envoy for climate change, John Kerry, will initially find a warm reception and abundant goodwill from most world leaders).

This essentially means that the NDC will need to be at least as ambitious as (and probably more so than) the Obama administration target of a 26-28 percent reduction in greenhouse gas emissions by 2025, compared with 2005 (which would have been difficult to achieve even if Hillary Clinton had become president). And it will need to compare favorably with the targets now being announced by other major emitters. For example, the European Union is enacting a new target to cut its emissions 55 percent below its 1990 level by 2030. And China recently said it will achieve carbon neutrality (zero net emissions) by 2060.

But if significant ambition is one necessary condition for the new Biden NDC, the other necessary condition is that it be credible, that is, truly achievable given existing and reasonably anticipated policy actions. The only way that both of these necessary conditions can be achieved is with aggressive new domestic climate legislation.

Is Ambitious Climate Legislation Feasible?

Even with the Democratic-controlled Senate—with a one-vote margin—meaningful and ambitious climate legislation will be difficult, if not impossible. The budget reconciliation process, whereby only a simple majority is needed to pass legislation, rather than the 60 votes required to cut off Senate debate, can be used to reverse some of Trump’s last-minute policies that are connected to the tax code or mandatory spending if every Democrat or enough Republicans to make up for any defections support the given move. And the one-vote margin can be effective for confirming Biden’s appointees, and it can help for increasing the budgets of federal agencies. But for ambitious climate (or other) legislation, the 60-vote threshold will be the binding constraint.

Under these circumstances, it will be challenging, to say the least, for Democrats to enact Biden’s climate plan, including its $2 trillion in spending over four years with the goal of making all U.S. electricity carbon free in 15 years and achieving net-zero emissions economy-wide by 2050. An analysis by the Rhodium Group suggests that to be on a steady path to achieve Biden’s 2050 goal, a cut of 43 percent below 2005 levels by 2030 would be necessary—in other words, a reduction of about 3 percent every year. Also, keep in mind that the Obama administration’s major climate legislation—the American Clean Energy and Security Act of 2009 (the so-called Waxman-Markey bill)—failed to receive a vote in the Senate, even though Democrats (and independents who caucused with Democrats) then held a total of 59 seats. Although climate change is now taken more seriously by the public and receives considerably greater attention in political circles than it did 12 years ago, the prospects over the next two to four years for comprehensive climate legislation—such as a truly meaningful carbon-pricing system—are not good.

But other legislation that would help reduce greenhouse gas emissions in the long term appears more feasible. That includes a post-coronavirus economic stimulus bill, which might have a green tinge, if not a fully green hue. The Obama administration’s stimulus package enacted 13 years ago in response to the Great Recession included some $90 billion in clean energy investments and tax incentives. Another candidate will be a future infrastructure bill, something both parties seem to recognize is important to upgrade aging U.S. infrastructure. This could include funding for improvements in the national electricity grid, which will be necessary to facilitate greater reliance on renewable sources of electricity generation.

Less Ambitious, But Bipartisan Climate Legislation

Finally, there are possibilities for less ambitious but bipartisan climate legislation, with stringency and scope much less than what Biden’s climate plan calls for. The key approaches here might involve tax incentives, that is, nearly every politician’s favorite instrument—subsidies. This may fit well with Biden’s moderate approach to governing and his stated desire to work with both parties in Congress. Specific bipartisan options could include (explicit or implicit) subsidies targeting wind and solar power, carbon capture and storage/utilization, nuclear power, technology initiatives, and electric vehicles via a rebate program.

But such modest, bipartisan initiatives are unlikely to satisfy either the demands of domestic climate policy advocates or international calls for action. Because of this, the new administration—like the Obama administration—may have to opt for regulatory approaches.

Possibilities for Regulatory Actions

The new president, under existing authority, could quickly take actions through executive orders in a number of areas to reverse many of Trump’s regulatory rollbacks. Will Democrats use the Congressional Review Act, which allows Congress to nullify a rule within 60 legislative days of its adoption? Republicans used this at the end of the Obama administration, but the law prohibits Congress from later adopting a regulation that is of “substantially the same form” as the disapproved rule unless it is specifically authorized by a subsequent law.

More generally, new oil and gas leasing on federal lands could again be prohibited, and the White House could attempt to block the Keystone XL pipeline from being completed. More promising, the president could direct that the social cost of carbon (SCC) be revised, presumably returning it to the Obama administration’s appropriate use of global (not just domestic) damages and a 3 percent (rather than 7 percent) discount rate in the calculations, thereby increasing the SCC from about $1 to $50 per ton, and directing federal agencies to use the revised SCC in their own decision-making. Presumably, the new administration will move to reinstate and surpass the Obama administration’s ambitious corporate average fuel economy (CAFE) standards, which is justified by the SCC.

Also, there is the possibility of using the authority of the Securities and Exchange Commission to use financial regulation of publicly traded companies to raise the cost of capital for fossil energy development, or to set standards for disclosure of climate-related corporate information. Likewise, the Commodity Futures Trading Commission has itself begun to explore options via its Market Risk Advisory Committee.

Thus, regulatory approaches under existing statutory authority through rule-making often appear to be an attractive option, but using new regulations under existing legislation rather than enacting new laws raises another problem—the courts. Rule-making entails lengthy notice and comment periods and requires extensive records and interagency consultation. Furthermore, rules are frequently subject to litigation. The Obama administration promulgated its Clean Power Plan after the Senate failed to deliver on the administration’s comprehensive climate legislation. And the Clean Power Plan was subject to a stay from the U.S. Supreme Court even before Trump entered office. Then Trump arrived and killed the regulation outright.

But the real challenge to the regulatory approach is that new regulations are much more likely to be successfully challenged in federal courts in 2021 than they were during the Obama years. This is partly because there are 228 Trump-appointed federal judges. But more importantly, the Supreme Court’s new 6-3 conservative majority is likely to favor a relatively literal reading of statutes, giving executive departments and agencies much less flexibility to go beyond the letter of the law or to interpret statutes in “innovative ways.” In particular, the Supreme Court may move to modify or even overrule the critical Chevron Doctrine, under which federal courts defer to administrative agencies when Congress was less than explicit on some issue in a statute (such as whether carbon dioxide can be regulated under sections of the Clean Air Act of 1970 intended for localized pollutants).

Other National and Sub-National Climate Policies

During the presidential transition, there has been considerable talk about a “whole of government” approach to climate change, in which the White House pushes virtually all departments and agencies to put in place changes that are supportive of decarbonizing the economy. This would be beyond or instead of the focused statutory and regulatory policies described above. Of course, the critical question is what such an approach can produce in terms of short-term emissions reductions and/or long-term decarbonizing of the economy. This is, at best, an open question.

Of course, even if little can be accomplished at the federal level over the next two to four years, surely the new administration will not be hostile to states and municipalities taking more aggressive action. Indeed, climate policies at the state level (California) and regional level (the Regional Greenhouse Gas Initiative in the Northeast) have become increasingly important, particularly during the four years of the Trump administration. Bottom-up evolution of national climate policy may continue to evolve from the Democratic-leaning states in the Northeast, Middle Atlantic, Upper Midwest, Southwest and West Coast (and Georgia!), which together represent more than half of the U.S. population and an even larger share of economic activity and greenhouse gas emissions.

A Note of Optimism for the Path Ahead

The new administration may or may not find creative ways to break the logjam that has prevented ambitious national climate change policies from being enacted (or, if enacted, to be sustainable). My greatest source of optimism is that the Biden-Harris team, in sharp contrast to the Trump-Pence administration, gives every indication that it will embrace scientific and other expertise across the board—whether that means the best epidemiologists and infectious disease experts designing an effective strategy for the coronavirus, or the best scientists, lawyers and economists designing sound climate policies that are also politically feasible.

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