From Sea Change to Sea Levels Rising: What a Unified Democratic Government Means for Climate Change Action

Jan 7, 2021

Reading Time : 3 min

Still, any ambitious landmark climate change legislation will face a steep uphill battle in light of Democrats’ thinnest of  margins in both houses of Congress (particularly in the Senate).  Absent the elimination of the Senate filibuster or the use of budget reconciliation, comprehensive reform through a singular bill is unlikely.  Instead, Democrats may learn from their failed attempt to pass economy-wide cap-and-trade legislation through a unified Congress in 2009.  They may consider eschewing a single, major legislative proposal and, instead, embedding climate change provisions in myriad pieces of legislation to implement a comprehensive climate strategy in a more bottom-up approach.  We do not anticipate that in 2021 Congress passes the Green New Deal, a fracking ban, or a full repeal of the 2017 Tax Cuts and Jobs Act to fund an ambitious environmental agenda.  Neither do we expect to see a climate-focused overhaul of the National Environmental Policy Act (NEPA). 

Rather, this newly unified government—which will require the cooperation of the more moderate members from both parties—is likely to look to more politically palatable, incremental ways to accelerate the United States’ response to environmental and climate impacts with an economy still struggling from a global pandemic.  Given these constraints, we expect short-term legislative priorities of Congress and the President-elect to include infrastructure, transportation (especially motor vehicles), and energy efficiency as modest, but tangible, ways to refocus the Trump Administration’s nationalist, fossil-fuel-based approach through a more renewable, climate-friendly, environmentally just lens.  Lastly, Democrats may be reluctant to use the oft-discussed Congressional Review Act to overturn late-term Trump Administration rules due to the law’s prohibition on the promulgation of similar rules, and instead rely on the regulatory process to rescind or replace them with rules that include stronger climate protections.

A number of Democrats will encourage Leader Schumer and Speaker Pelosi to use the budget reconciliation process, but this would require some deft legislating to amend a rule to allow for consideration of legislation beyond mandatory spending and revenue measures.  If Democratic leaders decide to pursue the budget reconciliation process to move climate policy, and are successful in amending the rules, that legislation can be much more ambitious.  This special mechanism used to pass the Trump tax reforms, as well as the Bush tax cuts, allows for the Senate to pass legislation with a simple majority and prevents the use of the filibuster.  If Democrats decide to use the budget reconciliation process to pass climate legislation, the approach will still require approval from moderates such as Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), but Democrats may not need any Republicans to support the effort.

While the first 100 days of his presidency are unlikely to yield comprehensive legislative reforms, a Democratic Congress gives President-elect Biden more cover to take bolder steps to “Build Back Better.”  In the short term, the narrow Democratic majority in the Senate (when considering the tie-breaking vote of Vice President-elect Harris) means that Biden has a clear path toward the prompt confirmation of his nominees to lead executive branch agencies, including the Environmental Protection Agency, Department of the Interior, Department of Energy, Council on Environmental Quality, and Department of Justice.  Following the confirmation of those agency heads, expect to see relatively quick action to achieve the more realistic components of his environmental agenda that do not require congressional authorization or appropriations.  These could include initiating the process to rescind and replace Trump-era rules related to methane and other greenhouse gas emissions from both stationary and mobile sources, scientific transparency in the rulemaking process, protected species, and NEPA implementation.

While there will be much optimism for an ambitious climate agenda under a newly unified government, Democrats will continue to be constrained by the narrow margins in the House and Senate.  Nonetheless, various Congressional rules changes or procedures are now available to them that could lead to more robust climate and environmental legislation.  President-elect Biden and Congressional leaders will need to decide if they are going to make climate change a priority that warrants the use of budget reconciliation or filibuster reform, or if they will rely on a more targeted strategy of winning smaller victories wherever feasible.

Share This Insight

Categories

Previous Entries

Speaking Energy

September 8, 2025

On September 4, 2025, the Senate Energy and Natural Resources Committee convened a hearing to consider the nominations of Laura Swett and David LaCerte to serve as commissioners at the Federal Energy Regulatory Commission (FERC or Commission). Swett is a former FERC Staff that served as legal and policy advisor to former FERC Chairman Kevin McIntyre and Commission Bernard McNamee. LaCerte is an attorney in private practice that previously held positions at the Chemical Safety and Hazard Investigation Board and the Louisiana Department of Veterans Affairs.

...

Read More

Speaking Energy

September 9, 2025

On August 29, 2025, Christopher Wright, the Secretary of the U.S. Department of Energy (DOE) submitted a proposal to the Federal Energy Regulatory Commission (FERC) under section 403 of the Department of Energy Organization Act (DOE Organization Act), asking that FERC terminate its long-running proceeding in Docket No. PL18-1, which addresses proposed updates to its policy statement on the Certification of New Interstate Natural Gas Facilities. The docket resulted in a draft policy statement that has never been finalized, nor relied upon by FERC in a published order, but would require FERC to consider environmental impacts and potential mitigation prior to making a public interest determination under the Natural Gas Act (NGA). The Secretary asks FERC to rescind the draft policy statement in its entirety to remove any uncertainty in gas infrastructure development. Rescission would require FERC to initiate a new docket and develop a new record should it want to reinitiate similar policy changes in the future.

...

Read More

Speaking Energy

August 15, 2025

On August 8, 2025, the Federal Energy Regulatory Commission (FERC) issued an enforcement order in Skye MS, LLC (Skye) and levied a $45,000 civil penalty on an intrastate pipeline operator in Mississippi, resolving an investigation into the operator’s violations of section 311 (Section 311) of the Natural Gas Policy Act (NGPA). FERC faulted the operator for providing a Section 311 transportation service without timely filing a Statement of Operating Conditions (SOC) and obtaining FERC’s approval for the transportation rates. Section 311 permits intrastate pipelines to transport interstate gas “on behalf of” interstate pipelines without becoming subject to FERC’s more extensive Natural Gas Act (NGA) jurisdiction, but requires the intrastate pipeline to have an SOC stating the rates and terms and conditions of service on file with FERC within 30 days of providing the interstate service. Under the NGPA, Section 311 rates must be “fair and equitable” and approved by FERC. In Skye, FERC stated that the operator began providing Section 311 service on certain pipeline segments in Mississippi in May 2023, following their acquisition from another Section 311 operator, but did not file an SOC with FERC until April 2025. The order ties the penalty to the approximately two-year delay between commencement of the Section 311 service and the SOC filing date. The pipeline operator was also ordered to provide an annual compliance report and to abide by additional verification requirements related to the filing of its FERC Form No. 549D, the Quarterly Transportation & Storage Report for Intrastate Natural Gas and Hinshaw Pipelines.

...

Read More

Speaking Energy

August 6, 2025

In Sierra Club v. FERC, No. 24-1199 (D.C. Cir. Aug. 1, 2025), the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) upheld the Federal Energy Regulatory Commission’s (FERC) approval of a 1,000-foot natural gas pipeline segment crossing the United States-Mexico border (the Border Pipeline) under section 3 of the Natural Gas Act (NGA), rejecting environmental groups’ challenges that FERC improperly limited its analysis under both the NGA and the National Environmental Policy Act (NEPA), as related to a 155-mile intrastate “Connector Pipeline” constructed upstream of the Border Pipeline in Texas.

...

Read More

Speaking Energy

July 17, 2025

On July 15, 2025, the Federal Energy Regulatory Commission (FERC or Commission) issued an order1 proposing to eliminate the soft price cap of $1,000 per megawatt-hour (MWh) for bilateral spot sales in the Western Electricity Coordinating Council (WECC) that was implemented following the California energy crisis. If adopted, the Commission’s proposal would eliminate the requirement that sellers make a filing with FERC cost justifying spot market sales in excess of the soft price cap, which have become increasingly common in recent years as market conditions have continued to tighten throughout the West. Eliminating the WECC soft price cap would provide sellers that make sales during periods when prices exceed the cap greater certainty that their sales will not be second guessed after the fact.

...

Read More

Speaking Energy

June 25, 2025

On June 4–5, 2025, the Federal Energy Regulatory Commission (FERC or Commission) hosted a commissioner-led technical conference to discuss resource adequacy challenges facing regional transmission organizations and independent system operators (RTO). The conference is a response to the growing concern that multiple RTO regions across the country may not have sufficient supply available in the coming years to meet demand due to resource retirements, the pace of new generation entry and higher load growth arising from the construction of data centers and reindustrialization.

...

Read More

Speaking Energy

June 12, 2025

We are pleased to share the presentation slide deck and a recording of Akin’s recently presented webinar, “Navigating U.S. Policy Shifts in the Critical Minerals Sector.”

...

Read More

Speaking Energy

June 10, 2025

On June 4, 2025, the U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) announced revisions to its procedures for pipeline safety enforcement actions. The changes, outlined in two new policy memoranda from PHMSA’s Office of the Chief Counsel (PHC), aim to enhance due process protections for pipeline operators by clarifying how civil penalties are calculated and expanding the disclosure of agency records in enforcement proceedings.

...

Read More

© 2025 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.