July 20, 2020

Biden Unveils Proposed Sustainable Infrastructure and Clean Energy Plan

Holland & Knight Alert
Beth A. Viola | Rich Gold | Isabel C. Lane | Hannah M. Coulter | Jenny Busby

Highlights

  • Presumptive Democratic presidential nominee Joe Biden released his new Sustainable Infrastructure and Clean Energy Plan, which expands upon earlier campaign proposals to achieve economy-wide net-zero emissions by 2050 and includes a zero-emissions by 2035 target for the energy sector.
  • Consistent with his campaign's messaging, the plan places emphasis on unionized American industry, workforce development, technology and innovation.
  • To achieve the net-zero emissions by 2050 goal, Biden, if elected, proposes that the U.S. invest $2 trillion over his four-year term in infrastructure, the automotive industry, public transit, energy-efficient affordable housing, innovation, sustainable agriculture and environmental justice.

Presumptive Democratic presidential nominee Joe Biden released his new Sustainable Infrastructure and Clean Energy Plan on July 14, 2020, which expands upon earlier campaign proposals to achieve economy-wide net-zero emissions by 2050. Consistent with his campaign's messaging, the plan places emphasis on unionized American industry, workforce development, technology and innovation.

Biden rolled out the plan with a speech in Wilmington, Delaware, where he emphasized the interconnectivity between clean energy and the economy as the nation recovers from the COVID-19 pandemic. He sought to distance himself from his electoral opponent with remarks that drew parallels between President Donald Trump's pandemic response and the broader challenges that will continue to befall the U.S. as climate change accelerates.

To achieve the net-zero emissions by 2050 goal, Biden, if elected, proposes that the U.S. invest $2 trillion over his four-year term in infrastructure, the automotive industry, public transit, energy-efficient affordable housing, innovation, sustainable agriculture and environmental justice. By contrast, last summer Biden proposed spending $1.7 trillion over a decade, signaling an increasingly aggressive climate platform as he seeks to unite the Democratic base ahead of the November 2020 elections.

The new proposal more closely aligns with the recommendations released earlier in July by the Democratic Unity Task Force, a joint initiative of allies from the Biden and Sen. Bernie Sanders presidential campaigns to advise the Democratic National Committee's Platform Committee in advance of the nominating convention in August. The climate task force, co-chaired by Rep. Alexandria Ocasio-Cortez (D-N.Y.) and former Secretary of State John Kerry, recommended an ambitious, concrete plan to arrive at net-zero emissions; to garner support from this more progressive wing of the party. Biden's plan identifies a number of nearer-term benchmarks in addition to the top-line 2050 goal. These interim steps include ensuring net-zero emissions for all new commercial buildings by 2030, targeting that all new American-built buses be zero-emissions by 2030, and, most notably, eliminating carbon emissions from the power sector by 2035. Given the lack of consensus across the Democratic caucus about the best approach to carbon pricing, the new Biden plan's avoidance of the controversial topic comes as no surprise. The candidate instead proposes an incentive-based approach focused on government investment rather than mandates.

Biden has expressed plans to fund the clean energy transition, along with other components of his Build Back Better initiative, with a combination of tax increases and stimulus spending likely tied to the continued pandemic response. Biden has separately released a tax proposal to increase the top individual income-tax rate for those with incomes above $400,000 from 37 percent to 39.6 percent, and to raise the corporate tax rate from 21 percent to 28 percent.

Political Positioning on Both Sides

Like Biden, President Trump has long campaigned on developing American infrastructure with an emphasis on the energy sector – though, with drastically different visions. While Trump asserts doubling down on the conventional energy industry will bring jobs and economic vitality back to America, Biden calls for investment, innovation and deployment of renewable energy to develop the carbon-free economy of the future.

In a speech in Atlanta on July 15, 2020, President Trump called Biden's climate plan radical, warning that it would result in job losses in the energy sector and cited the Democratic nominee's previous calls to prevent new fracking on federal land. The newly released plan is notably silent on mandating phase-outs of fossil-based fuels, instead taking an incentive-based approach more palatable in Rust Belt states critical to both candidates' paths to victory in November.

The plan also aligns more closely with the recommendations from the more progressive wing of the Democratic party than Biden's earlier climate plans. Sen. Sanders and Washington Gov. Jay Inslee, who ran a climate-focused campaign in the Democratic presidential primary campaign, have expressed support for the new document that also much more closely mirrors globally endorsed recommendations from the United Nation's Intergovernmental Panel on Climate Change (IPCC).

While Biden's plan does not address international objectives, the Unity Task Force's recommendations include rejoining the Paris Agreement on Day One of a Biden Administration, as well as creating and strengthening international commitments on climate and pollution such as ratifying the Kigali Amendment to the Montreal Protocol to phase out super-polluting hydrofluorocarbons (HFCs).

The Plan's Components

While coordination of this plan's implementation is not addressed in Biden's document, the Unity Task Force's recommendations include the reform of the Council on Environmental Quality (CEQ), the Obama Administration's administrative coordinator on climate that has been mostly sidelined in the Trump Administration. By this framework, CEQ would be rebranded as the Council on Climate Action "with a broader mandate" and would likely be charged with oversight and coordination of numerous cross-departmental initiatives:

  1. Modern Infrastructure. The plan's ambitions regarding infrastructure improvements is where it looks most similar to the platform put forward by President Trump – investment in smart roads, water systems, municipal transit networks, schools, airports, rail, ferries, ports and universal broadband access with a focus on disadvantaged communities. Where they differ is Biden's commitment to sustainability including an emphasis on mass transit initiatives and improving the U.S. railroad system, and elements aimed at achieving equity and bolstering the living standards of historically disadvantaged communities. In an effort to revolutionize municipal transit networks, Biden aims to provide all Americans in municipalities of more than 100,000 with quality public transportation by 2030, citing the financial and environmental burden posed by overreliance on cars. Biden's plan also pledges to invest in infrastructure to support:
  • clean drinking water
  • expanding broadband access across urban, tribal and rural populations to close the digital divide exacerbated by the COVID-19 crisis
  • redeveloping brownfields
  1. The American Auto Industry. Seizing upon the historical strength of the American automotive industry, Biden's plan aims to position America as the global leader in the manufacture of electric vehicles (EVs) and their components. Disapproving of President Trump's trade policies and acknowledging China's ever-expanding command of the auto industry, the document pledges to create 1 million new jobs in auto manufacturing, auto supply chains and auto infrastructure – all unionized industries. The major components of this industry-specific manufacturing initiative:
  • reestablishing aggressive light- and medium-duty vehicle fuel economy standards recently rolled back by the Trump Administration
  • federal procurement of clean vehicles, targeting fleet upgrades totaling 3 million vehicles
  • consumer incentives including rebates for replacing older vehicles with new, efficient, American-made vehicles
  • manufacturer incentives for American production of zero-emissions vehicles, components and associated infrastructure
  • investments in battery technology, specifically including research and development (R&D), and procurement
  • installation of 500,000 EV charging stations
  • incentivizing production of zero-emission buses by committing to convert all 500,000 school buses in the U.S.
  1. Clean Electric Power. Inversing Trump's approach to the energy sector, Biden's proposal seeks to capitalize on climate change, citing electrification as "the biggest job creation and economic opportunity engine of the 21st century." Other major tenets of the clean energy deployment plan include:
  • a technology-neutral Energy Efficiency and Clean Electricity Standard (EECES) for utilities and grid operators that will drive carbon-neutral energy generation by 2035 and reward employers who uphold strong labor standards
  • support for renewables including utility-scale solar, offshore wind, nuclear and hydropower
  • reform and extend existing tax incentives for clean energy and efficiency
  • grid infrastructure investments including battery storage and transmission, with an emphasis on repowering existing lines
  • procurement and investment in energy storage benefitting both utilities and rural cooperatives
  • investment in burgeoning clean energy technologies including green hydrogen and carbon capture (utilities achieving carbon-neutrality by deploying technologies that would qualify for the EECES)
  1. Energy-Efficient Affordable Housing. Ambitiously, Biden pledges to create 1 million construction and manufacturing jobs by upgrading 4 million buildings and weatherizing 2 million homes within his first four years. He also will seek legislation to set a new net-zero emissions standard for all new commercial buildings by 2030 and improve the building code process. The plan also includes:
  • improvements – developed with Buy America mandates in place and creating jobs – would include installation of high-efficiency LED lighting, electric appliances, and cost-effective heating and cooling systems in commercial buildings around the country
  • direct cash rebates and low-cost financing for upgrades on home appliances, efficient windows and cutting energy bills
  • establish building performance standards for existing buildings nationwide and develop mechanisms for other levels of government to follow suit
  • modernize lower-income schools, where the quality of the buildings pose an additional barrier to educational opportunity; funding will be used to improve indoor air quality and ventilation, build energy-efficient campuses, and upgrade child care and early learning facilities that are not safe or developmentally appropriate
  • spur construction of 1.5 million energy-efficient homes and public housing units by increasing the level of federal investment and incentivize regional planning
  1. Clean Energy Innovation. Echoing the approach taken by the Obama Administration, Biden's plan prioritizes government investment in clean energy R&D and federal procurement. Major tenets include:
  • a new Advanced Research Projects Agency on Climate (ARPA-C) to target affordable technologies to help the U.S. achieve its new energy target. The plan identifies numerous specific "game-changing" technologies include grid-scale storage, advanced nuclear, improved refrigerants, building efficiency, green hydrogen, decarbonized industrial processes, agricultural techniques for carbon storage, and carbon capture, utilization and sequestration.
  • development of resilient supply chains, including reducing reliance on imported rare minerals
  • investments in national laboratories and supercomputing
  • strengthening land-grant universities, Historically Black Colleges and Universities (HBCUs) and other minority serving institutions (MSIs) for R&D and workforce development
  1. Sustainable Agriculture and Conservation. Biden's plan provides an alternative vision of the future for rural America. Recent policies that have been particularly controversial for many in farm country include international trade issues and a lack of consistent support for the ethanol industry. The plan supports eliminating "historical discrimination against Black farmers," offering legal protections for immigrant workers regardless of immigration status, and has commitments to ensure equal access to support for disadvantaged farmers and ranchers. Additional tenets of his plan include efforts to:
  • improve access to low-cost financing for new equipment and methods, including precision agriculture to minimize the impacts of drought
  • establish a voluntary carbon farming market that rewards carbon sequestration and emissions reductions, including emissions from methane
  • smarter trade policy that focuses on effective enforcement
  • strengthen enforcement of antitrust policies and other regulations that ensure small- and medium-sized farms can compete with large corporations, and reinvest in land grant universities' agricultural research to promote public ownership of agricultural patents

On the conservation side, Biden promises to invest immediately to bring more than 250,000 skilled labor jobs to disadvantaged communities to plug orphaned oil and gas wells and reclaim abandoned mines. Ultimately, the plan would seek to increase financial accountability from companies through regulatory changes and limiting executive bonuses. Biden also pledges to deploy a Civilian Climate Corps to address sustainability and natural resource issues while creating union jobs.

  1. Environmental Justice and Equitable Economic Opportunity. Biden says that he will prioritize addressing historic, environmental justice throughout his comprehensive program. His goal is for disadvantage communities to receive 40 percent of overall benefits of spending in the areas of clean energy and energy efficiency deployment; clean transit and transportation; affordable and sustainable housing; training and workforce development; remediation and reduction of legacy pollution; and development of critical clean water infrastructure. Specifically, Biden wants to ensure that these communities have the funds to remediate lead service lines and lead paint, and that they have access to safe drinking water. Part of this effort will involve creating a data-driven Climate and Economic Justice Screening Tool to identify these disadvantaged communities. Biden also pledges to overhaul and update federal agencies such as the U.S. Environmental Protection Agency (EPA), and establish a new Environmental and Climate Justice Division within his administration in order to hold polluters accountable.

Environmental Justice Plan

Alongside the Sustainable Infrastructure and Clean Energy Plan, the Biden campaign also released a comprehensive environmental justice plan. The document commits to target 40 percent of clean energy benefits to communities of color and people who are most exposed to industrial pollution and resource extraction.

That effort calls for:

  • establishing an Environmental and Climate Justice Division within the U.S. Department of Justice (DOJ)
  • hiring CEQ staff to handle environmental justice issues
  • revamping the EPA External Civil Rights Compliance Office
  • requiring better monitoring, data collection and pollution reduction in at-risk communities
  • creating a notification program to inform people of environmental threats, in line with the "Alerting Localities of Environmental Risks and Threats (ALERT) Act" (H.R. 6527), sponsored by Rep. Lisa Blunt Rochester (D-Del.)
  • establishing an equitable strategy for disaster response and recovery, by establishing an Interagency Climate Equity Task Force

For more information or questions about the details of Biden's proposed clean energy plan, contact the authors.


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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