Dissecting the Biden Climate Executive Order

Dissecting the Biden Climate Executive Order

Feb 01, 2021

Client Alert

Brownstein Client Alert, February 1, 2021

The Jan. 27, 2021, “Executive Order on Tackling the Climate Crisis at Home and Abroad” is a broad, aspirational directive from the Biden administration to swiftly realign federal policy toward climate change. But the executive order (EO) does not merely implicate the traditional spheres of environmental, natural resources and energy policy. The EO has wide-reaching implications for foreign policy, national security, tax, financial services, federal funding and procurement, labor, infrastructure, agriculture, health and equity.

The chart below provides a section-by-section analysis of the intersectional policy implications of the Biden climate order and the expected timeline for these actions.

Section

What It Directs

Policy Area(s) Affected

Timeline

PART I — PUTTING THE CLIMATE CRISIS AT THE CENTER OF
UNITED STATES FOREIGN POLICY AND NATIONAL SECURITY

Sec. 101

This section states the policy that climate considerations will be an essential element of U.S. foreign policy and national security.

Foreign Policy

Ongoing

Sec. 102

- Announces the U.S. will host a Leaders’ Climate Summit, contribute to the United Nations COP26, and reconvene the Major Economies Forum on Energy and Climate

- Climate considerations will be prioritized in international forums (i.e., G7 and G20)

- Directs the development of the U.S. contribution under the Paris Agreement in advance of the Leaders’ Climate Summit

- Directs the development of a climate finance plan to assist developing countries to reduce emissions

- Directs the treasury secretary to promote climate-related financial initiatives in international financial institutions like the World Bank and the IMF

- DOE, State and Treasury will collaborate to end international financing of fossil fuels and advance sustainable development

- The secretary of state will seek the Senate’s advice and consent to ratify the Kigali Amendment, a treaty to phase down the use of hydrofluorocarbons

Foreign Policy, Tax, Financial Services

The Leaders’ Climate Summit will be held on Earth Day–April 22, 2021

Nationally determined contribution of emission reductions pursuant to the Paris Agreement will be decided by April 22, 2021

Within 90 days, the administration will prepare a climate finance plan to help developing nations reduce emissions

Within 60 days, the secretary of state will ask the Senate to ratify the Kigali Amendment

Sec. 103

- Directs international agencies to submit a plan to integrate climate considerations in decision-making

- Directs the director of national intelligence to prepare an estimate on the national and economic security impacts of climate change

- Directs DOD to prepare a similar report on the security implications of climate change

- Directs the defense secretary and the Joint Chiefs of Staff to provide an annual update on the security implications of climate change

- DHS is directed to consider the security implications of climate change in the Arctic and provide an annual update

Foreign Policy, National Security

Within 90 days, agencies that engage in international work will submit plans describing how they will incorporate climate considerations into their work

The director of national intelligence and the secretary of defense will submit an estimate on the security impacts of climate change within 120 days

Starting in 2022, DOD and DHS shall provide annual updates to their climate change analyses

Sec. 104

Reinstates the Climate Change and National Security memorandum from 2016

National Security

Ongoing

PART II — TAKING A GOVERNMENT-WIDE APPROACH TO THE CLIMATE CRISIS

Sec. 201

Expresses the policy that the U.S. shall utilize an all-of-government approach to achieve net-zero carbon emissions by 2050

 

Net-zero emissions by 2050

Sec. 202

Establishes the White House Office of Domestic Climate Policy

 

Ongoing

Sec. 203

Creates the National Climate Task Force consisting of Cabinet-level officials and chaired by the national climate advisor

 

Ongoing

USE OF THE FEDERAL GOVERNMENT’S BUYING POWER AND REAL PROPERTY AND ASSET MANAGEMENT

Sec. 204

States the policy to support climate action through management of federal procurement and real property, public lands and waters, and financial programs.

Federal Procurement, Public Lands

Ongoing

Sec. 205

- Directs CEQ, GSA, OMB in coordination with Commerce, DOL, DOE and other agencies to create a plan to revitalize the government’s sustainability efforts, including:

·         a carbon pollution-free electricity sector no later than 2035

·         a clean vehicle fleet for the U.S. government including USPS

·         encourage the use of union jobs to achieve these goals

Federal Procurement, Labor, Automotive

Submit a plan to the National Climate Task Force within 90 days; achieve a carbon pollution-free electricity sector no later than 2035

Sec. 206

- Directs compliance with Jan. 25 EO “Ensuring the Future Is Made in All of America by All of America’s Workers”

- Directs DOL to review Davis Bacon Act compliance

- Directs CEQ to work with FAR Council on ensuring contractors consider climate change

Federal Procurement, Labor

Ongoing

Sec. 207

- Directs the Interior Department to take steps to ensure renewable energy development is encouraged and offshore wind is doubled by 2030, including interagency coordination and consultation with tribes about renewable energy development

Public Lands, Oceans

Double offshore wind by 2030; Ongoing

Sec. 208

Pauses new oil and natural gas leases on public lands and offshore waters pending review and reconsideration of federal oil and gas permitting and leasing practices

Public Lands, Oceans

Ongoing

Sec. 209

Directs agencies in coordination with OMB and the national climate advisor to review and to the extent practicable cease direct federal subsidies to fossil fuels

Tax, R&D

OMB will include agency recommendations in FY 2022 budget request; Ongoing

Sec. 210

Directs agencies to identify and spur federal funding and deployment opportunities for clean energy in coordination with OMB and the national climate advisor

Federal Funding, R&D

OMB will include agency recommendations in FY 2022 budget request; Ongoing

Sec. 211

- Directs agencies to develop plans to make federal facilities and operations more resilient and efficient—these plans should be made publicly available

- Requires multiagency and interagency cooperation to assist state, local, tribal and territorial governments, communities and businesses to prepare for adaptation and resilience to climate change

Federal Procurement

Submit a draft action plan to the National Climate Task Force and the federal chief sustainability officer within 120 days

Federal chief sustainability officer will review plans within 30 days

Agencies will submit annual reports on progress

EMPOWERING WORKERS THROUGH REBUILDING OUR INFRASTRUCTURE FOR A SUSTAINABLE ECONOMY

Sec. 212

Expresses the policy goal to address the need for construction, manufacturing, engineering and skilled-trades workers, especially in areas impacted by pollution such as low-income rural and urban communities, communities of color and native communities.

Labor, Infrastructure

Ongoing

Sec. 213

- Directs CEQ and OMB to review federal infrastructure investments and permitting procedures and report to the national climate advisor on their progress and the progress of the Federal Permitting Improvement Steering Council

- Directs the review to focus on accelerating the deployment of clean energy and transmission projects

- Encourages consultation with state, local and tribal governments on federal permitting practices

Infrastructure

Ongoing

EMPOWERING WORKERS BY ADVANCING CONSERVATION, AGRICULTURE AND REFORESTATION

Sec. 214

Expresses the policy goals of conservation through environmental restoration, agricultural practices and reforestation through the creation of well-paying union jobs

Labor, Agriculture

 

Sec. 215

Directs the secretary of the interior in collaboration with the secretary of agriculture to develop a plan for the Civilian Climate Corps Initiative

Labor, Agriculture

Interior Department and USDA shall submit the Civilian Climate Corps Initiative plan to the National Climate Task Force within 90 days

Sec. 216

- Directs Interior Department in consultation with USDA, Commerce, CEQ and other agencies to develop a report on achieving the goal of conserving at least 30% of public lands and waters by 2030

- Directs USDA, Commerce Department, CEQ to consult with state, local and tribal governments as well as farmers and fisherman in creation of the 30 by 30 conservation goal

- Directs USDA to develop—with public consultation—an agricultural and forestry climate strategy to reduce wildfire risk

- Directs Commerce Department, through NOAA, to develop—after public consultation—more resilient fisheries and protected resources through changes in management and conservation measures and data improvements.

Public Lands, Oceans, Agriculture

Requires submission of 30% conservation plan to the National Climate Task Force within 90 days

Requires USDA to initiate consultation with state, local and tribal governments and other stakeholders on the agricultural and forestry climate strategy to reduce wildfire risk within 60 days and submit a report to the National Climate Task Force within 90 days

Requires NOAA to begin public consultation within 60 days

EMPOWERING WORKERS THROUGH REVITALIZING ENERGY COMMUNITIES

Sec. 217

Directs agencies to make coordinated investments in communities that are dependent on fossil fuels to reduce methane emissions, address other environmental harms and create jobs

Labor, Environment

 Ongoing

Sec. 218

Establishes the Interagency Working Group (IWG) on Coal and Power Plant Communities and Economic Revitalization

The IWG will be co-chaired by the national climate advisor and the assistant to the president for economic policy

Labor

Within 60 days, the Interagency Working Group must submit a report to the president with recommendations for federal support for coal and power plant communities

SECURING ENVIRONMENTAL JUSTICE AND SPURRING ECONOMIC OPPORTUNITY

Sec. 219

Directs agencies to support environmental justice communities through new programs, policies and other initiatives

Equity

 

Sec. 220

Establishes the White House Environmental Justice Interagency Council, led by the chair of the CEQ

Equity

Within 120 days, the White House Environmental Justice Interagency Council must submit to the national climate advisor a set of recommendations for updating Executive Order 12898 of Feb. 11, 1994 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations)

Sec. 221

Establishes the White House Environmental Justice Advisory Council within the EPA. It will advise the Environment Justice Interagency Council and CEQ.

Equity

Ongoing

Sec. 222

- Directs CEQ to develop a geospatial Climate and Economic Justice Screening Tool

- Directs the EPA to strengthen enforcement of environmental violations and create a program to collect and publish real-time data on pollution

- Proposes that the attorney general rename the Environment and Natural Resources Division the Environmental Justice and Natural Resources Division and directs him to ensure DOJ coordinates environmental justice activities across the agency

- Directs HHS to create an Office of Climate Change and Health Equity; an Interagency Working Group to Decrease Risk of Climate Change to Children, the Elderly, People with Disabilities, and the Vulnerable; and a biennial Health Care System Readiness Advisory Council

Equity, Health

The geospatial screening tool must be created within six months and CEQ will subsequently publish annual interactive maps identifying disadvantaged communities

Within 100 days, the director of the Office of Science and Technology Policy will publish a report identifying climate strategies and technologies that will lead to significant air and water quality improvements

Sec. 223

Directs an interagency group to jointly publish recommendations for how 40% of certain federal investments could be directed to disadvantaged communities

Equity

Recommendations for federal investments for disadvantaged communities must be published within 120 days

PART III — GENERAL PROVISIONS

Sec. 301

Clarifies that the order will not impact the authority statutorily granted to executive departments and agencies or the functions of the OMB and should be implemented in accordance with the law

Administrative

Ongoing


This document is intended to provide you with general information regarding the Biden administration’s climate policy. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

Meet The Team

Luke D. Johnson Policy Director T 202.747.0513 ldjohnson@bhfs.com
Reese Goldsmith Policy Advisor and Associate T 202.747.0505 rgoldsmith@bhfs.com
Annmarie Conboy-DePasquale Policy Analyst T 202.216.4865 aconboy-depasquale@bhfs.com
Timothy Jackson Policy Analyst T 202.747.0518 tjackson@bhfs.com
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