Amid rising tension the final votes of the 2020 US election were cast last week.  By electing Democrats Raphael Warnock and John Ossoff to the US Senate, voters in Georgia have dramatically shifted the balance of power in Washington, DC.  In one day, their votes have created an opportunity for the incoming Biden Administration to act on climate change.

In the aftermath, it is worth asking how big of an opportunity have they really created and what is the best way for the incoming administration to make the most of it?

51-50 Democrat majority

The results mean there is now a 50-50 split between the two parties in the US Senate.  In this situation the Vice President, as President of the Senate, can use their tie-breaking authority in the Constitution to determine which party is in the majority.  As a lifelong Democrat Vice President Harris will vote to give her party control of the chamber.

This one vote will have several consequences.  The party that controls the Senate also decides who chairs committees and has the majority of the members in each committee. The majority controls which legislation is debated by the committees and then what legislation goes to the full body for a vote.  This means that for the first time since 2010 climate change legislation could be voted on in the US Senate.

Early in the Biden Administration we may see legislation that relates to climate and energy policy could be prioritized. Many commentators believe that the Democratic majority will likely mean another round of COVID stimulus funding is voted on by Congress. In that legislation there could be additional resources for renewable energy and other climate-friendly measures.

Moreover, committee heads and the Majority Leader can decide what legislation is not addressed. Over the years, when the Republicans controlled the chamber, Senate Majority Leader Mitch McConnell was able to keep legislation on issues that he and Republicans opposed, and even one of President Obama’s Supreme Court nominees, from being voted on. This means if efforts to push for so-called “clean coal” or a bailout for the fossil fuel sector came up they could be derailed by the new Majority Leader Schumer.

Take Your Pick

One key change is that the Biden Administration should have an easier time getting their cabinet and commission appointees approved, for the simple reason that with a majority they will not need bipartisan support.  In the coming weeks each of Biden’s appointees to run departments must be approved by a vote of the US Senate.  This process involves hearings and a vote by committees of jurisdiction and eventually the entire body. During the confirmation hearings Republicans will try to raise objections and vote not to confirm concern appointees but if the Democratic caucus holds together this will not stop any of Biden’s appointees from being confirmed.

Appointees to several key cabinet departments will have a clear role in setting policy, writing and issuing regulations, and enforcing statutes that impact climate policy.  The willingness to make action on climate change a top priority has been one of the new administration’s key criteria for picking its slate of nominees.

For example, Biden’s nominee for Secretary of Transportation, Pete Buttigieg, has spoken of the need for an infrastructure program that expands electric vehicles and other climate-friendly positions. At the same time, former Governor Jennifer Granholm, Biden’s nominee for secretary of energy has discussed using the power of the department to expedite the energy transition in the auto industry.

As we have highlighted in past posts, once in office appointees can impact climate policy in several ways.  Over the past four years the Trump administration appointees at the EPA, Department of Energy, and the Bureau of Land Management have used their authority to direct focus, funding, and regulations toward supporting the fossil fuel sector and away from climate-related activities. This is likely to change dramatically with the new administration.

Go Small or Go Home

In the wake of the Democratic Party’s victory in Georgia it is important to remember that the political environment has not changed so radically as to make sweeping action possible. Legislative barriers, most notably the filibuster which has been used to stop climate legislation, remain in place.

Getting past a filibuster requires 60 members of the Senate to vote to stop debate, also known as invoking cloture, so a measure can proceed to a vote. If the 60-vote threshold cannot be reached the debate will continue. Due to the chamber’s rules, which allows a member to speak on any topic as long as they want unless cloture is invoked, in theory the debate could go on indefinitely. The reality is that Congress operates on a two-year schedule.  If a piece of legislation is not passed by the end of the second year it must start all over when the new Congress convenes the following year.  The filibuster forces leadership to abandon efforts to pass legislation that they know will not get enough votes for cloture or risk wasting time that could be used trying to pass more popular measures.

While there has been talk of doing away with the filibuster once the Democrats take control of the Senate there is not universal support in the caucus for eliminating it.  In 2020, Democratic Senators Diane Feinstein and Joe Manchin said they would oppose changing the rules on debate. Other moderates, such as Democrat Chris Coon of Delaware, are not committing either way on this change.

If this holds, and the filibuster remains, this means that even with their new majority, Democrats will need at least 10 Republican members voting with the entire Democratic Caucus of 50 members to reach the 60 votes needed to break the filibuster. Within the current political environment, it is highly unlikely that enough Republicans in the Senate will vote more for ambitious legislation such as an economy-wide cap and trade program or the Green New Deal.

So, what type of legislation can be passed in the next two years?

The easiest road for the Biden Administration is to push for legislative proposals which focus on increasing funding for renewable energy.  Polling from Pew shows that these measures enjoy widespread support from Democrats and Republicans alike.

While this course may not please some activists and elected officials who want bolder legislation, it is not clear which broader policies could obtain the support of a supermajority of senators needed for passage.  Despite the win in Georgia, it may be that Biden’s team is still more likely to make its greatest impact on climate change by focusing on Executive Branch engagement instead of through legislative action.