Even With a 50-50 Split, a Biden Administration Senate Could Make Big Strides on Climate

Democrats’ new edge opens the door to policy tools that can push through legislation. And bipartisan action is not out of reach.

Senate Majority Leader Mitch McConnell (right) (R-Ky.) and Senate Democratic Leader Chuck Schumer (D-N.Y.) shake hands after Schumer delivered a speech and answered questions at the University of Louisville's McConnell Center Feb. 12, 2018 in Louisville, Kentucky. Credit: Bill Pugliano/Getty Images

Senate Majority Leader Mitch McConnell (right) (R-Ky.) and Senate Democratic Leader Chuck Schumer (D-N.Y.) shake hands after Schumer delivered a speech and answered questions at the University of Louisville's McConnell Center Feb. 12, 2018 in Louisville, Kentucky. Credit: Bill Pugliano/Getty Images

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The Georgia victories have given Democrats control of the Senate. But some ardent advocates of climate action are still pessimistic about how much progress can be made with a 50-50 split, in a chamber that has been inert on climate policy for more than a decade.

Yet even the narrow majority the Democrats now have gives them extraordinary power to elevate climate change as a major priority and to take up the more than 120 pieces of legislation that House Democrats have included in a roadmap for a transition to net zero carbon emissions by 2050.

The Democrats’ new majority also offers Biden a smoother ride for his nominees and a chance to use Congress to quickly overturn some of the Trump administration’s last-ditch gifts to the fossil fuel industry. 

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Biden will have an opportunity to use a budget maneuver requiring just 51 votes for passage that presidents have turned to repeatedly over the last four decades to enact major policies favored primarily by one party. The same legislative vehicle that Presidents Ronald Reagan, George W. Bush and Donald Trump used to ram through massive tax cuts, could help enact large portions of Biden’s $2 trillion “Build Back Better” vision for clean energy and jobs.

Perhaps most significant, Democrats now can test the possibilities for bipartisan action on the world’s most important environmental crisis. There was no prospect for bipartisan agreement on climate when President Donald Trump and Senate Majority Leader Mitch McConnell (R-Ky.) held sway. 

But now that Trump will be gone and McConnell will be in the minority, Congress has its first real opportunity to confront the scientific consensus for cutting carbon emissions to net zero by mid-century. Biden’s embrace of that goal—far more ambitious than any set by President Barack Obama—comes at a time when climate impacts have become severe, and clean energy and other solutions are more economically viable than they ever have been.

“You have a broader and deeper movement for climate action, and I think you have a realization that there’s common purpose across different goals and values that weren’t as extensively aligned” even a decade ago, said Derek Walker, vice president for climate at the environmental group EDF Action.

To give just one example, red and purple states like Texas and North Carolina are among the top wind and solar energy states, providing bipartisan support for renewable energy incentives included in Congress’ year-end Covid-19 relief package. McConnell allowed some—but not all—of the proposed clean energy provisions in the package after receiving pressure from other GOP members. 

With many of those Republicans still in Congress, and McConnell stripped of his majority leader power, climate advocates see an opportunity to enact their agenda if it is packaged as jobs-creation and economic stimulus and included in the larger coronavirus relief package that undoubtedly will be the first thing on Biden’s legislative agenda. “This can be a great bridging-the-partisan-divide issue,” argues Walker.

Even those keenly aware of the difficult politics of the Senate were not able to suppress their enthusiasm after the victories by Democrats Raphael Warnock and Jon Ossoff became clear last week. “The age of incrementalism is over,” tweeted Sen. Edward Markey (D-Mass.)

The Power of a Simple Majority

Nothing with the name “Green New Deal”—the sweeping climate and economic justice plan embraced by Markey, with Rep. Alexandria Ocasio-Cortez (D-N.Y.)—is going to make it through a 50-50 Senate. The label has become poison for Republicans, and most legislation still requires 60 votes for passage under the Senate’s filibuster rule. Sen. Joe Manchin (D-W.Va.), incoming chairman of the Senate Energy Committee, is dead-set against abolishing the filibuster and against the Green New Deal, as well, meaning that coal state Democrat and other conservatives and moderates in Biden’s own party will be a force to be reckoned with in any effort to pursue sweeping climate legislation.

But a Democratic majority in the Senate (beginning as soon as the Georgia vote is certified and no later than Jan. 22) will ensure a strong start to Biden’s effort to enact his climate agenda.

With the tie-breaking vote of Vice President-elect Kamala Harris, Biden has the simple majority he needs to put in place nominees to restore the environmental regulations dismantled by Trump. For example, before the Georgia elections, Republicans had been mounting opposition to Neera Tanden, president of the Center for American Progress, Biden’s appointee to run the White House Office of Management and Budget, an agency that plays an important role in the cost-benefit analysis of regulations. Now, “there’s much less of a risk of a delay in considering those nominations, which could have caused a drag on the momentum and prevented the new administration from going at the pace we know is needed,” said Walker.

Biden also needs only a simple majority in the Senate to approve his judicial nominees, and he will early on have an opportunity to shape the court that hears the most cases on federal regulation: the U.S. Court of Appeals for the D.C. Circuit. Biden’s choice of Judge Merrick Garland, who has served on that court for 24 years, to serve as his Attorney General will leave a vacancy on that key court.

Another tool that can help propel the Biden climate agenda in the closely divided Senate is a Newt Gingrich-era law that was designed to discourage last-minute rulemaking by outgoing administrations. Under the law, Congress can vote by simple majority to reverse any rule finalized in the final 60 working days of the previous Congress. Sen. Brian Schatz (D-Hawaii), who has chaired the Senate Democrats’ Special Committee on the Climate Crisis, has said the law was high on party leaders’ agenda as a method of overturning just-finalized Trump rules.

The law, known as the Congressional Review Act, was little used until the start of the Trump administration, when the Republican Congress reversed 15 regulations finalized during President Obama’s final months in office. Now the Trump administration may have its last efforts to solidify a deregulatory legacy—with 30 consequential rules finalized since August that result in weaker environmental, health and worker protections, according to tracking by the group Public Citizen—unraveled by the same law.

There is a catch to using the CRA, however: Once Congress uses it to reverse a rule, the government is barred from drafting any regulation that is “substantially the same,” an undefined term that could create a legal risk for Biden. For example, the Trump administration decision to loosen regulation of the potent greenhouse gas methane at oil and gas operations was published in the Federal Register in September—making it eligible for overturning under the review act. But a Congressional repeal could offer foes of regulation a hook on which to hang a legal challenge of any new, strong methane rules by the Biden administration.

Democrats are far more likely to aim the Act at measures that the Biden administration hopes to wipe off the books entirely, like the Trump Environmental Protection Agency’s move this month to limit the use of certain scientific studies in decision-making. EPA Administrator Andrew Wheeler has said flatly that the rule is a minor “housekeeping” matter, not eligible for the CRA, but legal experts disagree. “The idea that you could take one of the most important regulations ever done in environmental law, one that could conceivably lead to tens of thousands of additional premature deaths every year, and call it a ‘housekeeping’ measure—it’s preposterous,” said Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law. 

But in addition to sweeping away Trump’s anti-climate actions—something that will not be done by Congress but by Biden’s EPA, Department of Interior, and other executive agencies, Biden will need to partner with lawmakers to put his own climate plan in place. And that will require Democrats to strategize about how much of the Biden climate agenda to push through Congress through the budget process and how much to pull moderate Republicans into a coalition to create bipartisan legislation that might have more impact and staying power.

A Way Around Divisive Legislation 

For 40 years, the Senate has provided an avenue for presidents to circumvent the filibuster: Major policy that has implications for taxation or spending can be included in budget reconciliation packages that need just 51 votes for passage.

Republicans repeatedly have used reconciliation to pass major tax cuts and other policy changes. For example, the Trump tax cut package in December 2017 opened up the Arctic National Wildlife Refuge for oil drilling, on the premise that royalties from the leases on federal land would bring in federal revenue. “Obamacare,” President Barack Obama’s landmark health care reform law, originally passed the Senate on a 60-to-39, party-line vote during Obama’s first year in office, when Democrats briefly held a Senate supermajority. But after the party’s hold on the Senate eroded by one, with the election of a Republican to fill the seat of the late Sen. Ted Kennedy of Massachusetts, important amendments to the law were passed through budget reconciliation.

Because Biden’s $2 trillion climate plan involves unprecedented government spending to spur a clean energy transition, climate activists are examining how many of those goals could be achieved through a reconciliation bill. Climate action items that could be included in budget reconciliation include measures like block grants to states that enact 100 percent clean energy programs or extension of federal tax credits for the purchase of electric vehicles. (Currently, there are no more tax credits available for purchasers of GM or Tesla EVs, under a ceiling previously enacted by Congress.)

Budget reconciliation is only permitted once in each fiscal year, but Biden will get an extra bite at the apple in his first year in office. Since Congress never passed a budget resolution for fiscal year 2021, Democrats could put a package together early in the Biden presidency before turning to a fiscal year 2022 bill, which probably would be reconciled in the fall.

But budget reconciliation will only work for measures that Biden can pass without losing a single Democratic vote, which makes it an unlikely vehicle for many potential climate solutions, including putting a price on carbon through a tax or other mechanism. Even action to reduce federal subsidies for the fossil fuel industry—a move Biden has committed to that has clear budget implications—would be a hard sell with Manchin and other Democrats from fossil fuel states.

“Every senator has a veto power, which is an extraordinary obstacle,” said Paul Bledsoe, a strategist for the Progressive Policy Institute who served as a staffer for Democrats on the Senate Finance Committee early in President Bill Clinton’s administration, when the party similarly had a narrow hold on the majority. Bledsoe argues that it will be much easier to pass incentives through reconciliation than to withdraw tax breaks. And any hope of passing a carbon tax through budget reconciliation in 2021 is quixotic, he said.

“Any energy taxes at all are out of the question—a non-starter,” said Bledsoe. “And the reason is primarily economic—you don’t raise taxes during a recession.”

Bledsoe and many others who have worked for climate policy on Capitol Hill over the last decade believe that Biden’s first moves on climate policy in Congress will be an effort to craft legislation that can win over the moderates in both the Democratic and Republican parties, especially on key issues like infrastructure and farm policy.

Bipartisan Action on Climate Not Out of the Question

Given the Republican party’s success in blocking climate policy during the Obama administration, and its support for the Trump administration’s climate retreat, many ardent climate advocates remain skeptical that Biden can win over a sufficient number of GOP votes while staying true to his ambitions for climate action.

The youth-led climate action group Sunrise Movement reached out to nearly 800,000 Georgia voters in an extensive get-out-the-vote effort on behalf of Warnock and Ossoff, a campaign in which they focused on the importance of removing McConnell as Senate Majority Leader. Now they argue that Biden should not allow his goals to be lowered in an effort to garner 60 votes.

“First, Democrats must abolish the filibuster,” wrote Sunrise Movement Executive Director and co-founder, Varshini Prakash, in a statement after the Georgia Senate wins. “Then, and only then, can Congress get to work passing bold and historic legislation to create millions of good jobs and putting a halt to the climate crisis.”

But since Manchin made clear after the November election that he would not vote to abolish the filibuster, depriving Democrats of the 51 votes they would need to change the Senate rules, many advocates of climate action are focused on how to win Republican votes without diluting the Biden climate plan.

For example, Trump promised to move forward with a big transportation project funding bill so often that his White House’s frequent declarations of “Infrastructure Week” with no real policy push forthcoming, became a running joke. But there was bipartisan support for infrastructure spending; early in the last Congress, the Senate Environment and Public Works Committee unanimously passed a $259 billion transportation bill that included climate provisions for the first time, including spending for electric vehicle infrastructure and support for other steps to reduce carbon emissions from highways, ports and other transportation sectors. McConnell never allowed the bill to come to a vote in the full Senate.

But Sen. Chuck Schumer of New York, who will take over as Senate Majority Leader, has vowed to use infrastructure spending to address climate change. Schumer has proposed spending almost half a trillion dollars over the next decade to spur a transition to electric vehicles, with payouts to consumers who trade in gas guzzlers, styled after the “cash-for-clunkers” program that was part of the Obama administration’s early economic stimulus plan. 

Climate advocates see similar potential for bipartisan action that would direct payments to farmers for taking action to reduce carbon emissions, as well as incentives for forest preservation and tree planting. In fact, Democrats on the House Select Committee on the Climate Crisis have released a 500-page report detailing potential legislation reaching into every corner of the U.S. economy with new investments, renewable energy standards, protection of lands and environmental justice. The committee chairwoman, Rep. Kathy Castor (D-Fla.), said she plans to push for enactment of the proposals, which have drawn on more than 100 hearings on climate in the House during the last Congress. Castor has consistently said that she believed that many of the ideas in the report—-including investments in next-generation nuclear technology and carbon removal technology—would have GOP support. 

“Bipartisanship on climate shouldn’t be about splitting the difference, or sacrificing your goals,” said Jeremy Symons, an environmental consultant who has long lobbied for climate action on Capitol Hill on behalf of environmental groups. “It should be about finding ways for smaller groups of senators to break out with novel ideas on how to achieve ambitious action. The real breakthroughs will be around finding things that Democrats and Republicans can both support that achieve big results.”

Clean energy research and development spending included in the Covid-19 relief package, an idea crafted by Manchin and Sen. Lisa Murkowski (R-Alaska), is one example of such bipartisan collaboration, although most climate advocates agree that a much bigger investment is needed.

Some believe that the tumult of the past few weeks, including the siege on the Capitol by Trump supporters, will have some Republicans looking for a way to separate themselves from the president’s policy legacy, even though they are reluctant to go along with Democrats’ drive to impeach him.

For example, Rep. Tom Reed (R-N.Y.) argued the day after the insurrection that Republicans should pursue compromise legislation with Biden on climate change as one step toward “not worrying about base politics as much, and standing up to that base.”

Heather Zichal, a former top Obama aide and Biden campaign advisor, who just took over as chief executive officer of the American Clean Power Association, a new renewable energy advocacy group, says she believes the change of leadership in the Senate, as well as in the White House, will offer a chance for a new start on climate.

“I am very hopeful that as we have this new Congress, as we have a new administration—without this sort of Trump bully pulpit—we do have a moment to hit reset,” she said. 

And many climate advocates think that Biden, as a 36-year veteran of the Senate, is uniquely positioned to find out how much Congress might achieve on climate with Trump and his supporters out of power.

“This election has changed the politics of climate change significantly, and nobody’s really tested yet the degree to which progress can be made getting Republicans and Democrats together,” Symons said. “One of the great question marks is, without Mitch McConnell standing in the way, what does the path forward look like?”