On November 16, the Trump administration announced that it would proceed with plans to allow oil and natural gas drilling in the Arctic National Wildlife Refuge in Alaska—following through on another rollback of former president Obama’s climate policies. With the election now over, and president-elect Joseph Biden set to take office in January, will American climate policy seesaw back—with Biden rolling back Trump’s rollbacks? And will Biden make his own mark, going further on climate policy than even Obama? Here, Stanford Law Professor Deborah Sivas, who is also the director of both Stanford’s Environmental and Natural Resources Law and Policy Program and its Environmental Law Clinic, answers these and other questions.
President Trump rolled back a significant number of President Obama’s environmental initiatives. Do you know about how many?
Those who keep count have calculated somewhere between 100 and 125 Trump-era rollbacks of environmental and climate/energy initiatives. Roughly two dozen of these are still in progress and may or may not be finalized before January 20. But however you slice it, that’s a pretty stunning statistic.
Do you expect the Biden administration to quickly roll back the rollbacks? And how doable will that be?
The incoming Biden team is currently receiving lots of input about how to prioritize the rollback of rollbacks. Some Trump initiatives will be easier than others to withdraw. For instance, the new administration can rescind executive orders and informal guidance without much process. But if a Trump rollback went through the Administrative Procedure Act rulemaking process and became final, the relevant agency will generally have to go through another public rulemaking process to undo the Trump rule.
What do you think the first legal steps might be in achieving that rollback of the rollbacks?
The first step for some of these Trump rules, many of which are the subject of ongoing litigation, will likely be to stop defending them in court. For instance, an Obama-era rule defining what constitutes “Waters of the United States” under the Clean Water Act was replaced by the “Navigable Waters Protection” rule, which is now embroiled in litigation. And the Trump administration likewise replaced Obama’s “Clean Power Plan” with the “Affordable Clean Energy” rule, also currently under legal challenge. I expect the incoming administration to change the federal government’s current position in such lawsuits and then move into a process of rescinding the Trump rules. One open question is whether the Biden EPA and other agencies will simply try to put the Obama rules back into place or will try to include additional protections at this point.
How quickly these new processes happen depends, in part, on getting the relevant agencies staffed, which includes installing new management teams and rebuilding capacity in the rank-and-file. I don’t think the public knows how many civil servants have left environmental agencies in despair, but the anecdotal information suggests greater attrition, even, than during the heyday of environmental deregulation under Ronald Reagan. It will take time to reverse this brain-drain and get appropriate people in place to work on new regulations. Maybe the silver lining is that there will be lots of opportunity for idealistic recent grads who want to impact environmental policy.
President elect Biden has said that he plans to rejoin the Paris Climate Accord. Is that still important?
Yes, very important, but not enough. Rejoining the Paris Accord is one thing Biden can do—and has pledged to do right away. Doing so will put the United States back on the right side of history. It will allow us to reengage the urgent international dialogue on climate policy, and I am hoping the world still wants to hear from us.
But we know that the Paris Accord is way too little at this point. The next steps will be even harder. In some ways, it feel like the world has reached a political (as well as an ecological) tipping point on the need for action, as everyone can now see the effects of climate change all around us. Whether that’s enough to spur meaningful international action remains to be seen.
And how about Fuel Economy Standards? Mary Barra, the General Motors chief executive, announced recently that the company would no longer support the Trump administration’s efforts to strip California of its ability to set its own fuel efficiency standards, saying: “President-elect Biden recently said, ‘I believe that we can own the 21st century car market again by moving to electric vehicles.’ We at General Motors couldn’t agree more.” Can you tell us why this is significant and if it will help Biden’s efforts to keep to or exceed the Obama administration’s goals on fuel economy standards?
Rolling back national vehicle fuel economy standards and stripping California of its ability to set higher standards are other examples of Trump actions that are now embroiled in litigation. But smart manufacturers see the writing on the wall. Several had already voluntarily agreed to meet stronger standards even if the administration prevailed in defending the Trump rollbacks. Having another major domestic auto manufacturer come on board is important. It means, in the end, that the game will be less about prescriptive regulations and lawsuits, and more about the marketplace. The Biden administration can strengthen the industry’s resolve by putting California’s standards, or something like them, back into place. But the key, in my view, is having manufacturers really buy into the paradigm shift. If industry innovates and aims to build better electric cars, batteries, and charging networks, rather than being dragged there by regulations that wax and wane with each administration, producers gain business certainty and they use their marketing genius to educate consumers along the way. If Detroit builds it better, the buyers will come.
The Tax Act of 2017 gave the Trump administration the authority to sell oil and gas leases in Alaska’s the Arctic National Wildlife Refuge—comprised of some 1.5 million acres along the coast. Biden opposes this. But the Trump administration seems to be accelerating the process. Is there time to make this happen before Jan. 20?
There may be just enough time for the Trump administration to sell leases in ANWR before leaving office. After the election, the administration raced to advertise and hold a quick auction before the Inauguration. On November 17, the Interior Department solicited nominations for lease tracts and opened the 30-day public comment period. In its ideal world, the Department could begin selling leases 30 days thereafter—or by January 16—and potentially sell them all before Biden even takes office. But even if the Department meets that very tight deadline, the sales may never come to fruition, for several reasons.
There are some obstacles to this drilling if leases are sold.
First, given the price of oil, the uncertain future for fossil fuel development, and the likely litigation and bad press over leasing in ANWR, it is unclear whether oil companies will even bid in significant numbers. Bids are sealed and the industry is being very quiet right now, but at least some analysts are predicting less interest than there may have been in the past.
Second, under the existing regulations, after a bid is accepted, the Bureau of Land Management must review the sales with various considerations in mind, a process that normally takes at least a few months. By then, Biden’s management team at Interior should be in place and would be able to reject the lease sales for various reasons, including the ecological risks posed by drilling. I suspect this result is quite likely given Biden’s announced opposition to drilling on these public lands.
Third, even if the current administration managed to hold the auction and miraculously get all the review and paperwork finalized before January 20, litigation will unquestionably follow. Indeed, Alaskan indigenous groups and environmental organizations already filed lawsuits this past summer challenging the Environmental Impact Statement prepared for the ANWR leasing program. Legal challenges to the individual lease sales would be the next step. And if the Trump administration does pull off lightning-fast lease awards, there are very likely to be legal errors in the review process and the paperwork.
Finally, the Biden administration could eventually deny permits to drill. This last avenue is the least good option because it may open the door for leaseholders to argue about an uncompensated taking of their lease rights. I am guessing we never reach this last option, however.
Can you talk about the Biden clean energy plan? Is it a good starting point? Does it go further than Obama? Are you encouraged by it?
Yes, it is an ambitious plan that, in several ways, goes well beyond what President Obama was able to achieve. But that makes sense because, four years later, things are even more dire from a climate perspective. Beyond rolling back the Trump rollbacks, the plan adopts a few really exciting “big ideas.” The biggest is the investment of $400 billion in an Apollo-style clean energy and innovation moonshot. People have been talking about this idea for years now, but Biden’s will be the first administration to put an actual commitment down on paper. Intimately related to the Apollo effort are the plan’s other vision for creating 10 million new “good-paying” union jobs to rebuild infrastructure and its commitment to rebuilding coal- and oil-based communities caught in the shift to renewable energy. These ideas build on each other in a way that could engender support from many different quarters.
The challenge, of course, is finding the federal resources and political will to keep these commitments. One could imagine a world where a national consensus emerges to invest in a clean energy future by putting devastated fossil fuel-based communities back to work on green infrastructure. On paper, a win-win-win. But given the partisan divide that has only worsened since the election, it is hard to see this vision translating into reality.
Is Biden’s plan achievable? How much can Biden do via executive order, whether rolling back Trump rollbacks or charting his own new path—even without a Democratic Senate?
As I noted, some of the regulatory rollbacks can be achieved by executive action, either in the form of executive orders or through the more time-consuming administrative rulemaking process. Given our increasingly conservative federal judiciary, the new administration will need to be particularly careful in how it frames and justifies these efforts. But even then, much of what is contemplated in Biden’s plan will require congressional collaboration. The big infrastructure ideas cannot be achieved by executive action alone. If people want these things to happen, they have to do more than just vote on election day; they need to participate, day in and day out, in the political process. Otherwise, I fear that inertia and special interests, aided by our unprecedented levels of polarization and mistrust, will ensure that none of these big ideas see the light of day.
Deborah A. Sivas is the Luke W. Cole Professor of Environmental Law at Stanford, the director its Environmental Law Clinic, director of its Environmental and Natural Resources Law and Policy Program, and a senior fellow at the Stanford Woods Institute for the Environment.