February 8, 2019

The Green New Deal: What It Does and (Mostly) Doesn't Do

Holland & Knight Alert
Taite R. McDonald | Beth A. Viola | Amy L. Edwards


  • Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Sen. Ed Markey (D-Mass.) on Feb 7, 2019, released companion resolutions that provide a framework for prospective legislation on a Green New Deal (GND), an ambitious climate policy.
  • The GND proposals are instructive and can serve as a blueprint for a potential climate and energy package for the next Democratic president to propose to Congress, or to help inform a bipartisan infrastructure bill.
  • This alert details what is and isn't included in that framework, and provides some thoughts on where a GND goes from here.

The concept of a Green New Deal (GND) has been around for at least a decade, but was popularized recently by the nascent Sunrise Movement and freshman Rep. Alexandria Ocasio-Cortez (D-N.Y.). In the months following the 2018 midterm elections, the GND has become a rallying cry of sorts for progressives inside and outside of Congress, a shorthand for a nebulous but ambitious climate policy that would transition the U.S. to 100 percent renewable or carbon-free electricity, recognize and address issues of environmental justice, and make significant investments in technological innovation and climate adaptation. Many Democratic presidential candidates ­– including Kamala Harris and Kirsten Gillibrand, among others –­ have declared their support for a GND, or at least the "idea" of one, but there were no specific policies to rally behind.

On Feb. 7, 2019, however, companion resolutions were introduced by Rep. Ocasio-Cortez and Sen. Ed Markey (D-Mass.) that provide a framework for prospective legislation on a GND (see Ocasio-Cortez's resolution and Markey's resolution). This alert details what is and isn't included in that framework, and provides some thoughts on where a GND goes from here.

What's in It

Any discussion of what these GND proposals are needs to start with what they're not – namely, legislation. Instead, they take the form of Sense of the Senate and Sense of the House resolutions, nonbinding statements of principles that express the views of the members of Congress who support them, but do not have any formal effect on policymaking.

Nonetheless, the proposals are instructive, as they represent the goals of a growing and increasingly vocal segment of the Democratic party, and can serve as a blueprint for a potential climate and energy package for the next Democratic president to propose to Congress. And there are some measures that he or she could do administratively through rulemakings.

The proposals begin with a statement of findings, referencing the conclusions from the October 2018 Special Report from the Intergovernmental Panel on Climate Change and the November 2018 National Climate Assessment from agencies across the U.S. government. These reports form the scientific basis for the need to reduce emissions by 40 percent to 60 percent below 2010 levels by 2030, and to net-zero global emissions by 2050, in order to stave off the worst effects of climate change.

The proposals then intrinsically link several issues confronting the U.S. and the world at large – including environmental degradation, income inequality, lack of access to healthcare, and wealth and earnings disparities by race and gender – and point out that climate change will only exacerbate these "systemic injustices" while acting as a threat multiplier that undermines our national security.

The goals of the GND are laid out in broad strokes: net-zero greenhouse gas emissions, job and economic security for affected industries and communities, infrastructure investment to adapt to climate impacts, clean air and water, and rectifying historic and ongoing environmental issues that disproportionately affect minority and low-income communities. The measures required to achieve those goals are described in similarly broad terms, with the tacit acknowledgment that future policies will go into the level of detail necessary to lay out exactly how those measures will work in practice. What can be said with certainty, though, is that the GND would entail a rapid and wholesale transformation of many aspects of the American economy.

The primary tasks are:

  • a transition to 100 percent renewable and zero-emission energy sources, which does not explicitly exclude nuclear power or fossil generation with carbon capture and sequestration
  • investments in resilient infrastructure, clean energy research and development, clean manufacturing, and assistance for industries and workers impacted by the transition away from more polluting industries
  • upgrades to the electric grid, water infrastructure, buildings, public transit systems and zero-emission vehicle infrastructure
  • community-led projects to mitigate and manage the health and economic impacts from climate change and conventional air and water pollutants
  • land use changes including afforestation and reforestation, improved soil management and habitat restoration

Notably absent in the GND resolutions is an explicit call to price carbon emissions. While the documents call for the federal government to "take into account the complete environmental and social costs and impacts of emissions," the lack of any mention of a carbon tax is noteworthy at a time when that policy is gaining momentum in both parties.

What This Means, and What Comes Next

Ultimately, the success of these resolutions will be judged by how many of the GND components eventually become enacted into law. And that will depend on a number of factors that will become evident over the coming days and weeks. First, the number of co-sponsors in each chamber will be illustrative, as well as their composition – that is, how many "Establishment" Democrats sign on, and how many presidential candidates throw their support behind the GND in whole or in part. Should the resolution come up for a vote in either chamber, the number of members of Congress voting in favor will be highly instructive as well, and could help determine whether the GND becomes an official plank in the Democratic party platform.

The breadth of the GND means that there will be many committees with jurisdiction over its component provisions. Whether members on those committees attempt to translate aspects of the GND into legislative language, and whether there are any bills that can garner bipartisan support, will provide insight into the feasibility and likelihood of successfully enacting parts of the GND into law in the coming years.

Lastly, at the risk of stating the obvious, it warrants mentioning that these resolutions are a partisan exercise, and are far from the kind of bipartisan legislation that could pass the Senate. The GND will be a highly expensive undertaking, and neither costs nor potential pay-fors are anywhere to be found in the text of the resolutions. So while a carbon price was intentionally omitted from the GND blueprint, a carbon tax will likely need to be part of any legislative package, if only as a way to raise revenue.

Taken together, this means that, should the GND be crafted into a fully formed bill, it is likely to include a price on carbon, a clean energy standard, building and appliance energy efficiency standards, federal funding for clean tech research and infrastructure improvements, and transition assistance for affected industries and low-income households. In other words, there are real similarities to the American Clean Energy and Security Act of 2009, often referred to as the Waxman-Markey bill, which passed the House in that year. However, it should be noted that companion legislation was never considered in the Senate at a time when Democrats controlled Congress and the White House.

Those deep in the trenches on these issues know that enacting the policies outlined in the GND resolutions will be a near-impossible feat, as confirmed by statements from key Republicans and some moderate Democrats. However, the enthusiasm and urgency presented by the backers of a GND bodes well for advancing climate and energy initiatives in bipartisan infrastructure packages in this Congress and in years to come.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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