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Climate Policy in the Biden Era: Georgia on My Mind

Climate Policy in the Biden Era: Georgia on My Mind

To control the Senate Democrats will need to win both Georgia runoff elections. To fail is to preclude at least one legislative maneuver that could rescind all of the Trump administration's final environmental laws finalized over the past two months.

Joel B. Stronberg

"Other arms reach out to me
And other eyes will smile tenderly
Still, in peaceful dreams, I see
The road leads back to you"

- Hoagy Carmichael / Stuart Gorell

We, the people, fired the nation’s chief executive long about a month ago. The order is scheduled to be confirmed by a vote of the Electoral College on December 14, 2020. It will then come due on January 20, 2021, when Joe Biden is sworn in as the 46th President of the United States.

The College’s vote will finalize the election of Joe Biden. It will not, however, bring an end to the 2020 election cycle. There is a critical step still to be taken for that to happen.

On January 5, 2021, Georgia voters will again be casting ballots to fill both of its US Senate seats. The outcome of the Peach State’s balloting is second in importance only to November’s presidential contest. In fact, some political veterans have dubbed Georgia’s Senate races "the most consequential runoff in American history in terms of shifting the balance of power in Washington."

I don’t often have an opportunity to agree with Newt Gingrich. The former House Speaker has seen—from inside political circles— many elections come and go.  I am willing, therefore, to defer to his superior experience in this matter.

Twin victories by the Democrats mean they will control Congress, i.e., the House and Senate. Republicans need only to win one of the two seats to maintain their Senate majority and, quite possibly, to seal the fate of the Biden administration’s climate policies.

Should the Senate remain in Republican hands, they will be in a position to withhold consent of cabinet members and other of the several hundred executive positions that will form the top echelon of the incoming administration. It means them having a controlling interest over the approval of federal judges, including justices of the Supreme Court.

A Republican controlled Senate will have leverage over the House and White House. It would allow Senate Majority Leader McConnell to have command over what is brought to the Senate floor for a vote and what compromises Senate conferees would be willing to make when reconciling differences in the few laws that manage to make it through both chambers. In essence, it means more gridlock.

For President-Elect Biden and the Democrats on Capitol Hill holding sway over the Senate means a smoother and more rapid confirmation process for cabinet and other senior administration executives. It increases chances for the passage of legislation.

A Democratic double in Georgia means also that certain procedural short-cuts could be open to the administration. As discussed in more detail below, use of the Congressional Review Act is only possible when the same party controls Congress and the White House. It was utilized to great benefit by Republicans in the first days of the Trump administration.

A Democratic Congress working with a Democratic White House means greater opportunity to strengthen the laws on which the nation’s environmental protections rest. Many of these foundational laws are long overdue for an update that reflects the urgency of the climate crisis and newly available technology.

The 2020 election the road leads back to Georgia

The Peach State’s requirement of a Senate candidate having to receive 50% of the ballots cast to win dates back to its segregationist past. In November neither of the State’s sitting senators—Loeffler and Perdue—garnered the vaunted number of votes.

The terms of US senators are ordinarily staggered. The resignation of Senator Johnny Isakson for health reasons led to Governor Kemp’s appointing Kelly Loeffler (R). Loeffler is the co-owner of the Atlanta Dream WNBA team. Her appointment was only for the time between Isakson’s leaving office and the next regular election. The winner of this vote will fill the remaining two years left in Isakson’s term. The seat comes up for election again in 2022 for the full six years term.

Loeffler’s opponent, the Reverend Raphael Warnock, is the senior pastor of Ebenezer Baptist Church in Atlanta. It is the same church in which Martin Luther King, Jr. served as the co-pastor with his father and preached from for much of his life. His The American Dream sermon was as prophetic of today as it was descriptive of yesterday:

"Now ever since the founding fathers of our nation dreamed this dream in all of its magnificence—to use a big word that the psychiatrists use—America has been something of a schizophrenic personality, tragically divided against herself. On the one hand, we have proudly professed the great principles of democracy, but on the other hand, we have sadly practiced the very opposite of those principles."

Georgia’s other Senator, David Perdue, is up for re-election in the regular rotation. He fell short of the 50% requirement, having beaten John Ossoff with 49.7% to Ossoff’s 47.9%. Perdue has been forced into a runoff, having beaten his opponent by 88,000 votes, while Trump lost the state’s 16 electoral votes by less than 13,000. The unevenness of it all must surely be contributing to the President’s irritation and jeremiads against a system he claims to be corrupt. However, rules are rules.

January’s contest won’t be the first time Georgia has held a Senate runoff election. In 1992, Democratic Senator Wyche Fowler Jr. was forced into a runoff with Paul Coverdell. In 2002, Saxby Chambliss bested the incumbent J. Max Cleland in a very heated campaign.

Chambliss’ attack ads claimed Senator Cleland, a decorated Vietnam veteran, and triple amputee, was soft on defense. In one ad, Chambliss suggested that Cleland must be a supporter of Osama bin Laden because he "voted against George W. Bush 11 times on domestic security."

A Greening of a different sort

Huge amounts of money have been pouring into Republican and Democratic coffers from inside and outside the state. The total spent on political ads has already exceeded $300 million, with Republican purchases of over $177 million and Democratic spending in the neighborhood of $130 million.

According to Bloomberg:

"Democrats aired more individual ads since Nov. 4—42,000 to 33,500, through Nov. 30—despite spending $3 million less than the GOP’s $33 million in total expenditures."

To put these sums in some context, Graph 1 shows the average cost of winning and losing a seat in the House and Senate between 2012 and 2018. The numbers for the 2020 election are still being reported to the Federal Election Commission (FEC). However, readers would be right in thinking those numbers will continue the upward sweep of election costs.

When things finally settle in Georgia, the Senate races will have the distinction of being among the costliest in history. With nearly a month left to go before voting day, the money already spent on advertising eclipses the most expensive races of 2018 (Graph 1). The Georgia races may be the first-ever to reach the half-billion-dollar mark. It’s a sum exceeding the GDP of the Federated States of Micronesia.

The money being spent on the contests is all the more startling given that the overwhelming majority of voters have already made up their minds. The way Dan Balz of the Washington Post sees it:

These are elections in which little appears movable. The candidates are well-known, their images are sharply defined, the electorate is highly polarized, and there are a minuscule number of persuadable voters.

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Georgia could be the poster-child of the “every vote counts” crowd—which it does. Only 12,000 votes separated Biden from Bush in the general election. Turnout is again likely to be the deciding factor in the runoff elections.

Both sets of candidates are pushing the criticality of the runoff election not just to Georgia but to the nation. Both parties are heralding the State’s runoff campaigns as crusades against foes who would destroy the country and much of the free world. It is to say the runoff election is a repeat of the themes of the 2020 presidential campaign.

Former President Obama, speaking at a virtual Biden/Harris rally, told the audience: "this is not just about Georgia. This is about the world."

"You are now once again the center of our civic universe because the special election in Georgia is going to determine, ultimately, the course of the Biden presidency and whether Joe Biden and Kamala Harris can deliver legislatively all of the commitments they’ve made."

Senator Loeffler, whose campaign has called pastor Warnock "a radical’s radical", has a similar concept of the election’s meaning and speaks as well for the senior senator of Georgia on this issue:

"We are the firewall. Not just for the Senate, but the future of our country…Warnock is a radical who attacks law enforcement, supports trillion-dollar tax hikes and job-killing regulations, and embraces anti-American values that undermine the US Constitution and our way of life."

Climate change has not been much of a factor in the Georgia elections. However, the Green New Deal has. Warnock has a history of fighting for environmental justice as pastor of the Ebenezer Baptist Church. Ossoff supports much of the progressive climate agenda; however, he is on record opposing the Green New Deal.

Perdue and Loeffler have exhibited no shyness in their attempts to brand Ossoff and Warnock as—how should I phrase this—NASTY SOCIALISTS! In this regard, Loeffler and Perdue are Trumpeters. Their refusals to acknowledge President-Elect Biden and Vice President-Elect Harris only confirm this.

Both of the runoff races are too close to call at the moment. Should either or both the Republicans be re-elected, it is fair to assume they would continue to toe the Trumpian line of dismissing what science has to say about Earth’s warming and what might adequately address it.

Since before the election the Trump administration has been rapidly moving to finish its environmental deregulation agenda. Should Ossoff and Warnock prevail in their races, it would allow the Democratic Congress and the Biden administration to use the Congressional Review Act to undo many of Trump’s efforts to gut the nation’s environmental protection framework on the way out the door.

I’ve written before about the Congressional Review Act (CRA or Act) giving Congress and the president the chance to prevent a regulation from becoming final through a joint resolution of disapproval. The Act permits this to happen with a new rulemaking—potentially saving many months of delay.

Before a rule can take effect, an agency must submit a report to each house of Congress and the comptroller general. After receiving the information, members of Congress have 60 legislative days during which the House and Senate must submit and act on a joint resolution of disapproval. Once both chambers approve the joint resolution, it is forwarded to the President for approval. A Presidential veto can be overridden by a two-thirds vote of the House and Senate. (Graph 2)

The CRA hasn’t been used often because of divided government. According to the Congressional Research Service, only 17 out of the nearly 91,000 rules published in the Federal Register have ever been repealed using the CRA. Fourteen of the 17 were revoked within the first days of the Trump administration.

President Trump and his administration have been mindful of the CRA’s requirements since the beginning of 2020. In anticipation of being defeated 2020 elections, they dedicated themselves to getting as many regulations as possible out the door in advance of the 60-day window. It is difficult to game the CRA clock in advance of a Congress going out sine die. It is now estimated that final rules issued in June could come under the CRA.

More than two dozen measures have been submitted to the White House Office of Information and Regulatory Affairs (OIRA) since election day—more are on their way. Below is are just some of the rules that could be subject to a Joint Resolution of disapproval.

  • Resource Conservation and Recovery Act (RCRA) On October 15th, 2020, EPA finalizes the rule it proposed in March 2020 that will allow facilities to demonstrate that their unlined coal ash impoundments are as safe as lined impoundments and continue operating. The regulation affects about 523 unlined impoundments at 229 facilities.
  • Tongass Timber Reform Act The Forest Service publishes a final rule exempting the entire Tongass National Forest from the 2001 Roadless Rule, opening the Forest to timber harvesting and road construction activities.
  • Clean Air Act. Fuels Regulatory Streamlining Rule: The final rule, published on December 4th, overhauls the fuels regulatory program via a host of revisions slated to take effect on January 1st, 2021.
  • Compensation and Liability Act Financial Responsibility Requirements for Chemical Manufacturing; Petroleum and Coal Products Manufacturing; and Electric Power Generation, Transmission and Distribution. The final rule published on December 2nd proposes not to impose financial responsibility requirements for facilities in these sectors. The final rule covers all three sectors.
  • Resource Conservation and Recovery Act Coal Ash Landfill Rule Governing Disposal of Waste (Part B) The final rule published on November 12th permits coal ash disposal sites to continue operating without composite liners if they can show “no reasonable probability” of contaminating the groundwater; environmental groups are likely to challenge.
  • Federal Insecticide, Fungicide, and Rodenticide Act Agricultural Worker Protection Standard: The final rule published on October 30th has an effective date of December 29th.

A new website by Berkeley Law’s Center for Law and the Environment has just been established to track the 200 rollbacks of the Trump administration and efforts to undo them. The rules are listed by agency.

Living in an "either-or" world

Once upon a time, in a land far, far away, members of different political parties could actually work together—at least sometimes—to pass laws and undertake other acts thought in the best interest of the nation. Each day that land seems further and further away.

American politics have become so tribal as to require one or the other party controlling the executive and legislative branches of government to get anything done. Even at that, hyper-partisanship has meant that the parties spend their time in power undoing what the other just did.

You have to go back a half-century to find examples of when Democrats and Republicans worked together to put needed sweeping environmental legislation on the books. Since that time, climate-related legislation has gone in partisan cycles—a little more each election.

The nation is now experiencing what happens when science is dismissed on political ground. In the greater scheme of things, Georgia’s January 2021 election should not be making the difference it does in terms of sound national energy and environmental policy. But it does, and until it doesn’t, we’ll continue to live in an either-or world.