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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Anticipated Impacts of 2020 U.S. Election on Climate Policy

There is little time left until the U.S. presidential and congressional elections on November 3rd, an election which people on all sides of the many issues, whether they’re Republicans or Democrats, characterize as an exceptionally important election.  Among the important policy areas that will be affected by the election is the area on which I focus in this blog, namely environmental and energy policy, including of course, climate change policy.

As readers of this blog know, my monthly podcast – “Environmental Insights: Discussions on Policy and Practice from the Harvard Environmental Economics Program – provides a venue for me to chat about policy and practice with knowledgeable people working at the interface of economics, energy, and the environment, whether from academia, NGOs, business, or government.  With the election coming up, it was clear to me that it would be a real service to our listeners, both in the United States and around the world, to talk with knowledgeable people about the election’s implications, both before the election and afterward.  And I realized that for this purpose, rather than talking with someone from academia, government, NGOs, or industry, I should talk with people who make it their business to examine key climate policy questions in a real-world political context on a daily basis, indeed often on an hourly basis.

I’m referring, of course, to practicing journalists.  So, I went to two people who are leaders in the realm of environmental reporting in a meaningful political context, two people whom I greatly respect and with whom I’ve had the pleasure of working – from my perch in academia – for many years.  Specifically, my post-election discussion, which will be in a few weeks, will be with Coral Davenport of the New York Times.  And for our before-election discussion, I’m delighted to say that I was joined by Lisa Friedman, reporter on the climate desk, also at the New York Times.  You can hear our complete discussion here.

Lisa Friedman, who joined the New York Times in 2017, after spending 12 years at Climatewire and E&E News, expressed  her delight with the attention that climate change policy is receiving in this election year, saying that it is “undeniably bigger and more substantive than it has ever been before,” noting, for example, the seven hours of climate change Town Hall discussions hosted by CNN.

“In every election that I have covered, both presidential and midterms, since I’ve been focused on climate change for about 10 or 12 years now, we always ask, ‘is this the election when climate change matters?’ And it does seem that this is the election when climate change matters.”

Friedman points out that the news coverage during this election cycle has demonstrated that the two presidential candidates represent very different views on climate policy.

“The fact that one candidate who calls climate change a hoax, and has been openly antagonistic to climate science, and has moved to roll back climate regulations, is pitted against a candidate who calls climate change an existential threat, makes this a more salient issue to cover,” she says.

If President Trump is re-elected, Friedman explains, Americans can expect more of the same policy positions that he espoused during his first term.

“President Trump has rolled back virtually every regulation that had existed to draw down emissions from power plants, from automobile tailpipe emissions, from the oil and gas sector,” she says. “One of the things that this administration has done that hasn’t gotten as much attention is they have worked to not just roll back regulations, but to roll back the ability to create new regulations. And I think that is something that we’ll see a lot more of.”

Friedman notes that if Vice-President Biden is elected on November 3rd, he will push the country toward more aggressive climate policies, although Congressional support would not be guaranteed.

“Vice President Biden has pledged two trillion [dollars] over four years to boost clean energy, electric automobiles, energy efficient buildings. He has called for eliminating fossil fuel emissions from the power sector by 2035,” she says. “That is going to be a difficult sell to get through the Senate in any configuration.”

Friedman also predicts that a President-elect Biden will likely announce very early that the United States will rejoin the Paris Agreement, from which Trump withdrew U.S. support early in his administration.

“I think you can expect some messaging very early on to the international community to remind them that throughout his campaign, he has pledged at getting back into the Paris Agreement will be a day one promise,” she says. “And then comes the question of thinking … about what US reentry into the Paris Agreement looks like.  Because…getting back into Paris is the easy part.”

The more challenging part, of course, will be specifying a new Nationally Determined Contribution within the Paris Agreement framework.

All of this and more is found in the latest episode of “Environmental Insights: Discussions on Policy and Practice from the Harvard Environmental Economics Program.” Listen to this latest discussion here.  You can find a complete transcript of our conversation at the website of the Harvard Environmental Economics Program.

Friedman’s interview is the 16th episode in the Environmental Insights series, with future episodes scheduled to drop each month. The next episode will feature another New York Times climate desk reporter, Coral Davenport, who will provide a post-election analysis.

My conversation with Lisa Friedman is the sixteenth episode in the Environmental Insights series.  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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Global Climate Change Negotiations: Learning from the Past to Think Carefully about the Future

I’m pleased to say we have released the newest episode of our podcast, “Environmental Insights: Discussions on Policy and Practice from the Harvard Environmental Economics Program.”  In this latest episode, I engage in a conversation with Sue Biniaz, long-time legal expert and lead negotiator for the U.S. Department of State in the international negotiations under the United Nations Framework Convention on Climate Change (UNFCCC).

Sue is currently a Lecturer in Law at Yale Law School in New Haven, Connecticut. Before that, she served for over thirty years in the State Department’s Legal Adviser’s Office, where she was a Deputy Legal Adviser, as well as the lead climate lawyer and a lead climate negotiator from 1989 until early 2017.  She is also a Senior Fellow at the United Nations Foundation, and has taught at Columbia Law School and the University of Chicago Law School.  She attended Yale College and Columbia Law School, and subsequently clerked for Judge Dorothy W. Nelson on the 9th Circuit Court of Appeals.

Sue Biniaz speaking at Harvard Kennedy School, April 2018

In this podcast episode, we talk about Sue’s extensive experience in the climate negotiations.  Commenting on COP-25 in Madrid last December, after Sue had left the State Department, she takes note of the disappointment that surrounded the failure to reach agreement on the “Rulebook” (detailed guidance) for the one article (of twenty-nine) in the Paris Agreement which had not already been resolved:  Article 6, which deals with modes of international cooperation, and provides the potential home for linkage of policies in different countries, including so-called carbon markets:

“It was unfortunate that they didn’t reach agreement on Article 6.  I think the compromises were all pretty evident and they ran out of time. I think there wasn’t enough kind of political oomph put into it at the end. That’s an example of if the U.S. had been there at a political level, they would have been able to sort of bang some heads together and get it done.”

With COP-26 having been postponed from November 2020 to sometime in 2021, due to the COVID-19 pandemic, Biniaz believes that international climate negotiators may now wish to take advantage of this hiatus to consider ways to improve the annual climate talks.

“One of the reasons I think the COP needs to be re-thought is because I think the metric that’s been used by many people including the press has been the negotiating issues that are on the table,” Biniaz argues. “If you only look at those, it just puts too much pressure on what should be kind of a minor aspect of a COP compared to everything else that’s going on.”

With the U.S. elections looming in November, Biniaz says hopes are high that a new presidential administration will rejoin the Paris Agreement, and reengage in a productive way.

“If you’re going to rejoin the Paris Agreement, do it in a way that isn’t going to just be reversed four or eight years later. Try to make sure you have enough domestic buy-in so it’s harder for a future administration to just reverse it again,” she states. “And…if you’re going to come back into the agreement, try to use whatever leverage the United States has at that point to get other countries to do more.”

As you will quickly realize when you listen to this podcast episode, Sue Biniaz is not only very smart and exceptionally knowledgeable; she is also unusually clear and articulate.  You will not regret listening!

Sue Biniaz (center) with Todd Stern, then the U.S. lead climate negotiator, at COP-17 in Durban, South Africa, in 2011.

All of this and much more is found in the newest episode of “Environmental Insights: Discussions on Policy and Practice from the Harvard Environmental Economics Program.” Listen to this latest discussion here, where, by the way, you can also find a complete transcript of our conversation.

My conversation with Sue Biniaz is the tenth episode in the Environmental Insights series.  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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