By Maya Weber

November 6, 2020 -  In a scenario where Democratic contender Joe Biden takes the White House after the final counts are tallied, energy lawyers Nov. 5 depicted a flurry of activity possible in his first 100 days in office with consequences for energy-sector interests.

The early steps could include a pause on pending regulations, rejoining the Paris Climate Accord, and new executive orders on environmental justice, clean energy, the social cost of carbon, and use of cost-benefit analysis by regulators, said Cliff Rothenstein, K&L Gates adviser, during a webinar the practice held.

With the potential for split government, lobbyists and advisers on the call identified clean energy technology as an area ripe for bipartisan legislative action, although limits on carbon emissions were still seen as a possible dividing line.

Ready for Reversals

According to Rothenstein, a freeze early on in a new administration on the issuance of new regulations would give the policy team time to review what is in progress. A recent White House directive that agencies align their National Environmental Policy Act procedures with a new rule would likely be paused, he said.

A slew of Trump regulatory executive orders also could be reversed, on the other hand, like the one requiring two rules to be nixed for each rule promulgated, he said.

He also expected a burst of activity on enforcement, for instance at the Environmental Protection Agency.

"Under a Biden administration, you're probably going to very aggressively start a robust enforcement initiative," potentially with information orders under the Clean Air Act, Clean Water Act, or Resource Conservation and Recovery Act, he said.

He also expected a litigation reset. Where the Trump administration has been defending its energy and environmental deregulatory actions in court, Rothenstein suggested the Biden team would decide whether to ask the court to remand those rules back to the agency. Some rules in question include the Clean Power Plan rewrite, fuel economy standards, methane regulation for the oil and gas sector, and the NEPA rule with implications for infrastructure permitting, he said.

Longer term, a host of other climate-related rules rolled back by the Trump administration affecting the energy sector could be revisited, he said. Others, such as the Waters of the US rule or the Clean Water Act Section 401 Certification rule could also be reviewed for possible changes.

Transition Prospects

Bart Gordon, K&L Gates partner and former chairman of the House of Representatives' Committee on Science and Technology, anticipated that a Biden administration would act quickly to line up personnel in the transition period, and would likely place an emphasis on the scientific experience of energy appointees.

"You're going to see a lot of Clinton and Obama folks with particular expertise; you're going to see some of them come back, you're going to see a lot of diversity," he said. Arun Majumbar, the first director of ARPA-E, is someone mentioned frequently for a high position at the Department of Energy, he said, and former Energy Secretary Ernest Moniz "has also been there," he said.

In addition, he expected some of "the old folks and new folks" might be involved in a private sector advisory group initiative related to Biden's climate goals.

The administration is "going to want to know what does the private sector need to move toward this 2050" net-zero carbon emissions goal, he said.

Gordon, for his part, saw the potential for early action on oil and gas drilling and leasing. Gordon cast Biden's instinct as governing as a moderate, but he expected action related to public lands early on.

"I think he going to come out right away with those things to help appease the progressives," he said. "I think you'll see him come out right away to send a message to them so that then he can start governing in a more bipartisan, cordial way."

Legislative View

In a scenario where Republicans keep the Senate, advisers with K&L Gates said action on clean energy technology is a possible area of compromise, even with Senate leadership that is "very protective of fossil fuels" and unlikely to adopt sweeping energy policy changes.

"We can look at legislation that has passed a Republican Senate and we see some really important clean energy priorities that are sort of the sweet spot of support by both sides," said Lauri Purpuro, government affairs adviser at K&L Gates. Those include the accelerated deployment of advanced wind and solar power, the extension of hydropower incentives, modernization of marine renewables, a focus on carbon capture, utilization and sequestration, and deployment of large-scale energy storage, she said.

Also in that category were measures previously passing the Senate in a surface transportation bill — incentives for transportation carbon emissions reductions, grants for electric vehicle charging stations and alternative vehicles, as well as an extension of clean energy tax credits, she said.

Should Republicans keep the Senate, chairmanship of the Senate Energy and Natural Resources Committee is likely to pass to Senator John Barrasso, Republican of Wyoming, the number-one coal-producing state and the number-eight natural gas-producing state, she said. Serving as ranking member on that key committee would likely be Senator Joe Manchin, Democrat of West Virginia, another major coal and gas producing state, she noted. Senator Shelley Moore Capito, a Republican from West Virginia, would head the Senate Environment and Public Works Committee, she said, if Republicans retain control.

She also highlighted the potential for action on hydrogen, "particularly if we're looking at support for carbon capture and storage technology."

The extent of clean energy policy changes approved would also depend on former Biden's personal negotiations with former colleagues, should he be elected, and lobbying efforts of traditional Republican constituencies, like corporate America, in her view.

"Many businesses we know are interested in seeing some stability and some certainty in climate and energy policy, so there are additional opportunities there for clean-energy provisions," she said.