With razor-thin control of the U.S. Senate resting on the outcome of two special elections in January 2021, President-elect Joe Biden will likely be forced to pursue much of his energy and climate agenda through executive orders and administrative rulemakings.
And that may require the U.S. Environmental Protection Agency to confront a tough decision: whether to issue a revamped Clean Power Plan-like rule for the U.S. power sector.
"Given the fact that Biden's probably not going to have a compliant Senate to work with, don't look for him getting policy done through a reconciliation bill, or even an ambitious climate bill," Eric Washburn, a former senior advisor to Senate Majority Leader Harry Reid, D-Nev., said on a post-election webinar hosted by Bracewell LLP. "He's going to have to do what he's going to do to promote his clean energy and climate agenda administratively, and that's going to put a lot of pressure on EPA. I suspect you're going to see a new Clean Power Plan."
"This is not a situation where just turning back the clock is going to be the most effective thing to do," Janet McCabe, former assistant administrator of the EPA's air office during the Barack Obama administration, said in an interview. "The Clean Power Plan is out of date now."
As a member of the Environmental Protection Network, an advocacy group launched in January 2017, McCabe led a workgroup of former EPA staff in releasing detailed recommendations for how a future administration should address stationary sources of emissions. First among its recommendations is to recognize limited EPA resources by prioritizing early actions that can make real reductions in pollution.
Assessing the odds of a new Clean Power Plan, McCabe noted that Obama tried to secure bipartisan climate legislation in his first term only to see the Waxman-Markey cap-and-trade bill die in the Senate.
"We've been down this road before, which was try legislation first and then turn to regulation, and I think that there's no time to lose here, really," McCabe said. " I think it's going to be hard to avoid wanting to look at whether there's a regulatory approach for power plants under the Clean Air Act."