Biden Signs Far-Reaching Executive Order Setting Forth Climate Change Priorities

On January 27, 2021, President Biden signed Executive Order 14008, Tackling the Climate Crisis at Home and Abroad (the “Order”). The Order sets forth the Biden administration’s policies to address climate change through both foreign and domestic policies and demonstrates the administration’s intent to make addressing climate change a top priority for nearly every department and agency of the federal government. The Order follows and expands on the prior executive order President Biden signed on January 20, discussed in our prior Legal Update.¹

Most notably, the Order:

• temporarily suspends new oil and gas leases on public lands or offshore waters (see our previous Legal Update²);
• seeks to restrict the use of funding from the Export-Import Bank, the IMF, the World Bank and other international financial organizations for carbon-energy projects and apply funds to clean energy projects;
• directs agencies to incorporate climate change considerations into their operations (including procurement policies); and
• makes environmental justice a priority for the Department of Justice.

The following is an overview of the main policy priorities established by the Order and certain governmental bodies created to coordinate the development and implementation of these policies.

1. Foreign Policy and National Security.

The Order establishes that “climate considerations” shall be an “essential element of the United States foreign policy and national security” and states that the United States will exercise its international leadership to “put the world on a sustainable climate pathway.”

To implement this shift in US policy, the Order specifies a range of foreign policy and other diplomatic actions designed to build on the Paris Climate Agreement’s (“Paris Agreement”) objectives of achieving a safe global temperature, increasing climate resiliency, and aligning financial flows toward lower greenhouse emissions and climate-resilient development. These actions include a number of international events to address climate issues and establish these as a priority for the United States with respect to the world. Such events include the Leaders’ Climate Summit, the Major Economics Forum, activities related to the G-7 and G-20, the IMF and the World Bank. In a more general manner, the Order directs agencies engaged in international work to develop, in coordination with the Special Presidential Envoy for Climate, and submit to the President “strategies and implementation plans for integrating climate considerations into their international work.”

The Order directs the Secretary of Treasury to work with the Secretaries of State and Energy, and the heads of the Export-Import Bank (ExIm) and the Development Finance Corporation (DFC) to end “the international financing of carbon intensive fossil fuel-base carbon energy” and transition to “sustainable development” and a “green recovery,” signaling that ExIm and DFC may cease financing carbon energy projects. In a similar direction, the Secretary of State and the Secretary of the Treasury, in coordination with the Special Presidential Envoy for Climate, are instructed to develop a plan to assist developing countries in reducing emissions, protecting ecosystems, building climate change resilience, and moving investment away from “high-carbon investments” and toward “climate-aligned investments.”

With respect to national security, the Director of National Intelligence is directed to assess the national and economic security impacts of climate change, and the Secretary of Defense is directed analyze the security implications of climate change. The Secretary of Defense and Chairman of the Joint Chiefs of Staff are directed to assess and incorporate the security implications of climate change into, and regularly update, the National Defense Strategy and other planning documents. Similarly, the Secretary of Homeland Security is required to assess and incorporate into its planning documents the implications of climate change in the Arctic, along US borders, and for critical infrastructure.

2. Government-Wide Approach to the Climate Crisis.

The Order establishes the White House Office of Domestic Climate Policy (ODCP) to coordinate the domestic climate policy-making process. The Order also establishes a National Climate Task Force (“Task Force”), to be chaired by the National Climate Advisor and composed of leaders from 21 federal agencies and departments, to facilitate the organization and deployment of a government-wide approach to combating the climate crisis. Task Force members are directed to prioritize action on climate change in their policy-making and budget processes, contracting and procurement, and engagement with state, local, tribal and territorial governments. Because the ODCP and the Task Force have similar functions and overlapping jurisdiction, it is not clear how these committees will operate in practice and allocate responsibility.

3. Federal Government Operations.

The Order establishes that the administration will use federal procurement, properties, and assets to support robust climate action, with the goal of inducing private sector investment into domestic clean energy, buildings, vehicles, and other products and materials.

• Procurement Plan. The Chair of the Council on Environmental Quality (CEQ), the Administrator of General Services, and the Director of the Office of Management and Budget (OMB), in conjunction with the heads of relevant agencies, are directed to assist the National Climate Advisor in developing a plan to revitalize the federal government’s sustainability efforts, creating good jobs and stimulating clean energy industries. Of note, the plan is required to use procurement authorities to achieve or facilitate a carbon pollution-free electricity sector no later than 2035, as well as facilitate the use of clean and zero-emission vehicles for federal, state, local, and tribal government fleets.
• Procurement Requirements. When making clean energy, energy efficiency, and clean energy procurement decisions, federal agencies are directed to abide by Made in America Laws and enforce the Davis-Bacon Act.
• Renewable Energy on Public Lands. The Secretary of the Interior is directed to identify actions that would increase renewable energy production on public lands and in offshore waters with the goal of doubling offshore wind production by 2030.
• Moratorium of New Oil and Gas Leases on Public Lands. The Secretary of the Interior is directed to pause new oil and gas leases on public lands and waters pending a “rigorous review” of all existing leasing and permitting practices relating to fossil fuel development. The Secretary is also directed to consider adjusting royalty rates for coal, oil, and gas extracted from public lands or to take other actions to account for climate costs.
• Fossil Fuel Subsidies. The OMB Director is directed to eliminate fossil fuel subsidies in budget requests starting with fiscal year 2022 and to prioritize investments in clean energy innovation, commercialization, and deployment of clean energy technologies.
• Climate Action Plans. Each agency head is directed to submit a draft action plan to the Task Force and Federal Chief Sustainability Officer describing steps the agency can take to bolster adaptation and increase resilience of its facilities and operations to the impacts of climate change. Thereafter, yearly progress reports are to be submitted to the Task Force and the Federal Chief Sustainability Officer and posted to agency websites.

4. Sustainable Infrastructure.

The Chair of CEQ and the Director of OMB are directed to ensure that federal infrastructure investment reduces climate pollution and to take action to require that permitting decisions consider the effects of greenhouse gas emissions and climate change while also identifying steps to accelerate clean energy and transmission projects.

5. Advancing Conservation, Agriculture, and Reforestation.

The Secretary of the Interior is directed to submit a strategy to create a Civilian Climate Corps Initiative to conserve and restore public lands and waters, bolster community resilience, increase reforestation, increase carbon sequestration in the agricultural sector, protect biodiversity, improve access to recreation, and address the changing climate. Additionally, the Secretary is to submit a report recommending steps the United States should take to achieve the goal of conserving at least 30 percent of its lands and waters by 2030.

6. Interagency Working Group on Coal Communities.

The Order establishes an Interagency Working Group on Coal and Power Plant Communities and Economic Revitalization (Interagency Working Group), co-chaired by the National Climate Advisor and the Assistant to the President for Economic Policy (NEC Chair) and including most cabinet secretaries. The Interagency Working Group is to coordinate the delivery of federal resources to revitalize coal, oil, gas, and power plant communities and to examine means for protecting the benefits for coal and power plant workers.

7. Environmental Justice Initiatives.

The Order creates a White House Environmental Justice Interagency Council (“Interagency Council”) to develop a strategy to address current and historic environmental injustice. The Order also establishes a White House Environmental Justice Advisory Council to provide recommendations to the Interagency Council regarding ways to increase the federal government’s efforts to address current and historic environmental injustice. As part of this effort, the Chair of CEQ is required to create a “geospatial Climate and Economic Justice Screening Tool” and annually publish maps highlighting disadvantaged communities. The Administrator of the Environmental Protection Agency is directed to strengthen enforcement of environmental violations with disproportionate impact on underserved communities and to create a community notification program to monitor and provide real-time data to the public on current environmental pollution in places with the most significant exposure to such pollution. Finally, the Order establishes a “Justice40 Initiative” that aims to direct federal investments in clean energy, energy efficiency, and other environmental programs such that 40 percent of the benefits go to disadvantaged communities.

¹ https://www.mayerbrown.com/en/perspectives-events/publications/2021/01/biden-executive-order-on-energy-regulation

² https://www.mayerbrown.com/en/perspectives-events/publications/2021/01/biden-administration-takes-action-on-oil-gas-permits-but-policy-still-evolving