Democrats Tackle the Environment
4.5.2021
As spring flowers are growing and cherry blossoms are blooming in Washington, Congress and the administration are turning their focus to environmental and infrastructure policy. Both issues were major focal points of Joe Biden’s presidential campaign, but now face an uphill battle on Capitol Hill. While starting as distinct legislative packages, environmental and infrastructure initiatives may become intertwined in their legislative journey from proposed bill to enacted legislation. For the purposes of this article, we will consider each issue as separate and distinct policy matters involving both ends of Pennsylvania Avenue.
In March, House Democrats unveiled the most expansive climate legislation ever to be considered in Congress. It is expected it will take several months for the issue to move through the Capitol. There is anything but unity within the Democratic majority in the House as to what should be included in an environmental legislative package, or if it should be one massive proposal or broken down into smaller, more digestible, and therefore passable, bills. And across the aisle, many Republicans consider the bill a nonstarter with mandates and regulations that they say will crush the U.S. economy, push jobs overseas and weaken national security.
Included in the 1,000+ page, $565 billion, CLEAN Future Act are provisions to, among other things:
- Set a national interim goal to reduce greenhouse gas pollution by no less than 50% below 2005 levels by no later than 2030
- Declare a national goal for the U.S. to achieve a 100% clean economy by no later than 2050
- Establish a federal clean energy standard
- Modernize electricity infrastructure and create a 21st century power grid
- Reauthorize the Low Income Home Energy Assistance Program (LIHEAP) through FY 2031
- Direct the EPA Administrator to provide awards for up to 100% of the replacement costs of zero-emission school buses
- Place a temporary pause on new permits for facilities that produce plastics, or the raw materials used to produce plastics
- Require the Secretary of Energy to establish a comprehensive, nationwide program to improve education and training for energy-related jobs to increase the number of skilled and trained workers
- Establish that it is the responsibility of the federal government to ensure the impacts of climate change are identified and considered when developing and implementing national security doctrine, policies and plans.
A key theme of the legislative package is a focus on environmental justice, which the Environmental Protection Agency defines as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The proposed legislation codifies the interagency working group on environmental justice to coordinate federal efforts to alleviate disproportionate impacts of pollution and requires relevant federal agencies to integrate environmental justice into their respective missions. In addition, it requires community considerations to be taken into account when renewing or granting certain permits.
In his first public statement as the U.S.’s top environmental regulator, EPA Chief Michael Regan declared that environmental justice would be at the core of any decision-making at his agency. He will appoint a senior environmental justice advisor and dedicate resources to ensure “every person in the United States has the right to clean air, clean water and a healthier life no matter how much money they have in their pockets, the color of their skin or their zip code.”
The role of the private sector in climate solutions is also addressed in the legislation. The bill would require companies regulated by the Securities and Exchange Commission to disclose potential risks and any proposed mitigation strategies posed by climate change. The SEC would have to issue disclosure rules within two years and these rules would have to include “specific reporting standards for disclosing direct and indirect Green House Gas (GHG) emissions of a covered issuer and any fossil fuel related assets and specify requirements for climate scenario analyses.”
In the meantime, the SEC is already proceeding with setting up mandatory climate disclosure rules for publicly traded companies. Gary Gensler is expected to advance this rulemaking process early in his tenure as SEC chair. During his campaign, President Biden called for companies to disclose any climate risks and greenhouse gas emissions within their supply chains. For some climate activists, these disclosures are merely a first step in regulating financial companies’ environmental practices. They seek further defined and enforceable green commitments from Wall Street. Republicans in Congress have said any required disclosure is political overreach and outside the scope of the SEC’s powers.
In the international arena, President Biden has undertaken several environmental initiatives since taking office. On Inauguration Day, he announced the United States would be returning to the Paris Accord, an international framework for addressing greenhouse gas emissions to limit the rise in global temperatures along with support for developing nations and transparent and robust climate goals. NYSBA has been supportive of U.S. involvement in the accord. When President Trump announced his intention to remove the U.S. from the agreement, then-NYSBA President Sharon Stern Gerstman wrote to Trump to register the Association’s objection to his decision to have the U.S. withdraw from the monumental agreement. In addition, Biden is also hosting a Climate Summit on Earth Day, and the United States will be an active participant in the November G20 meeting with a focus on sustainable finance.
The other major policy initiative advancing in Washington this spring is an infrastructure package. The proposal includes both physical and human infrastructure pieces. Legislative proposals includes both physical and human infrastructure pieces. Speaker Nancy Pelosi has said the House will consider comprehensive legislation before the Fourth of July.
The physical infrastructure piece will likely include traditional components such as investments in roads, bridges, public housing, schools and manufacturing. It is expected that the human infrastructure piece will include investments in child care, paid leave, community college education and broadband expansion and access.
While there is general agreement that funding for broadband to close the “digital divide”—the chasm between those who can afford and have access to the internet at home and those who do not—will be included in an infrastructure package, it is unclear what the specifics will look like. One option is a proposal to authorize over $100 billion for building or expanding broadband networks, subsidies to help low income Americans afford their internet bills and for implementing Next Generation 911 services, such as those that utilize text messages in lieu of phone calls. Another nearly $100 billion proposal also includes provisions specifically for broadband expansion in unserved and underserved communities.
Increased broadband access is a federal priority for NYSBA. The pandemic and resulting stay-at-home orders left millions of Americans working, educating and socializing in a virtual world. It has become abundantly clear that broadband service is an important communications tool that has become vitally necessary for educational purposes and medical care, as well as access to justice. There is a significant lack of technology infrastructure in vast portions of New York State, while many parts of the state have limited broadband availability and some areas are completely without any broadband service whatsoever. Appropriate funding is critical for the expansion of a 21st century digital infrastructure sufficient to provide adequate broadband access to all areas of the nation.
The division in Washington over infrastructure is not so much partisan as it is geographical. While there are the usual differences between Democrats and Republicans on the role of government and spending priorities, the major divide in infrastructure is urban vs. rural.
Urban representatives typically are supportive of investments in transit infrastructure, which their constituents use more than highway spending. For example, some members in the Democratic caucus seek to change the Highway Trust Fund’s allocation formula. Currently, monies are divided 80% for highways and 20% for transit systems. They argue that this formula puts urban residents, who are much more likely to rely on public transportation than personal automobiles, at a disadvantage and further exacerbates social injustice. However, other Democrats, who represent rural communities, want to keep the status quo formula funding in place as it benefits their constituents. We can see this dichotomy play out across the country, but also within the bounds of New York State. Urban centers’ transportation needs are quite different from rural areas’ needs in the Empire State.
Rural representatives, who are often Republican, recognize the need for substantial investments in developing broadband for their areas, which often do not have any access to high speed internet. They also tend to represent more rural and suburban areas that rely on highways and cars for transportation needs.
When Department of Transportation Secretary Pete Buttigieg appeared before Congress on proposed infrastructure legislation, he testified, “I believe that we have at this moment, the best chance in any of our lifetimes to make a generational investment in infrastructure that will help us meet the country’s most pressing challenges today and create a stronger future for decades to come.”
This sentiment can be applied to climate change legislation as well. While we do not have a crystal ball to predict the future of these legislative proposals, it is clear that the political climate is right for these debates, and the electorate is engaged and watching closely what their representatives will do.
Hilary Jochmans is the policy director for the New York State Bar Association and a member of the House of Delegates. She is also the founder of Jochmans Consulting, a boutique government affairs business. Previously, Hilary was the director of the New York State Governor’s Office in Washington for both Andrew Cuomo and David Paterson, and has spent a dozen years on Capitol Hill working in the House and Senate.
