Ever since the 2009 Waxman-Markey bill — an attempt to create a national cap-and-trade emissions plan — passed in the House but hit a wall in the Senate, the prospects of both houses of Congress being able to pass legislation that meaningfully cuts CO2 emissions have been slim.

Citing an urgent need to address climate change, major electric utilities, large corporations and state governments are pledging to hit net-zero emissions over the next several decades. Renewable energy and battery storage have become competitive to such a degree that the idea of a 100% carbon-free grid is a serious proposal in the scientific and policy world rather than a far-off dream.

In Congress, however, the post-election world of 2021 appears to have many of the same challenges as 2009. The same structural barriers, primarily in the Senate, remain. Democrats’ most optimistic scenarios for the election see them winning control of the Senate by a slim margin, making sweeping climate legislation vulnerable to the filibuster.

"It would be very hard to find 60 votes in the Senate for an economy-wide policy… like Waxman-Markey," Sasha Mackler, director of the Energy Project at the Bipartisan Policy Center, said.

"Assuming we control the Senate, I think we go very quickly toward a climate bill and we probably use the budget reconciliation process to make sure we have something that can pass."

Sheldon Whitehouse

U.S. Senator, Rhode Island

Some climate policies could be passed as part of budget reconciliation, which is not subject to the filibuster, but would be limited to those provisions related to spending. As a result, left out of reconciliation could be what has become the centerpiece of Joe Biden’s climate platform: a clean energy standard modeled off the state renewable portfolio standards widely seen as having been successful in steering those states toward greater use of renewable energy.

Other energy proposals have a degree of bipartisan support and thus could conceivably be passed regardless of the exact makeup of Congress next term. For advocates of climate action, however, these policies are inadequate, at least by themselves, when compared to a standard that mandates emissions reductions.

"We would prioritize a clean energy standard," Gregory Wetstone, president and CEO of the American Council on Renewable Energy, said. "It’s a way to ensure progress toward a clean energy future." 

An example of legislation that has bipartisan support is the Clean Energy Jobs and Innovation Act, which directs spending toward a variety of emerging energy technologies and passed the House in September. The American Energy Innovation Act, a bill introduced by Chair of the Energy and Natural Resources Committee Lisa Murkowski, R-Alaska, and Ranking Member Joe Manchin, D-W. Va., which is similar to but distinct from the House bill, has gotten close to passing the Senate but lacks a few key votes. 

Wetstone previously said it is "critical" that energy legislation be more ambitious than simply funding research and development because the effects of more R&D may take years to be seen on the ground.

But given the agreement across the aisle about the existing bills, innovation spending may be politically easy in an environment where a clean energy standard stalls. The House and Senate innovation bills, for which bipartisan support has been demonstrated, contain hints of what could be included in a compromise energy bill, such as spending on demonstration projects for carbon capture and sequestration and the next generation of nuclear reactors.

But another route toward policies that would more immediately reduce emissions is the budget reconciliation process, where Senate Democrats would only need a simple majority vote to enact these policies as part of a larger tax and spending bill.

"Assuming we control the Senate, I think we go very quickly toward a climate bill and we probably use the budget reconciliation process to make sure we have something that can pass," Sen. Sheldon Whitehouse, D-R.I., said in a discussion with Sen. Murkowski, held by Stanford University's Environmental and Energy Policy Analysis Center on Oct. 21. When asked how the nature of budget reconciliation could restrain the content of that bill, Whitehouse said that "at a minimum, a carbon price would be a clear, budget-related item."

Several bills that would more explicitly place a price on carbon have surfaced in Congress, such as the Market Choice Act, introduced in 2019 by a bipartisan group of representatives, which aims to replace the federal gasoline tax with a tax on carbon emissions.

“There are a number of Republicans who are evolving on the climate issue.”

Sasha Mackler

Energy Project Director, Bipartisan Policy Center

Another piece of legislation that could gain new momentum under a Biden administration is a bill by Sen. Ron Wyden, D-Ore., called the Clean Energy for America Act. The bill, which Whitehouse has co-sponsored, calls for moving past tax credits for specific clean energy sources like solar and wind and toward a technology-neutral tax credit that applies to sources that are 35% cleaner than average and increases the closer the source is to 100% CO2-free.

"A tech-neutral approach similar to Wyden… could be put in a tax reform bill" that could be conceivably passed during a Biden White House before the midterms, Grant Carlisle, senior advisor for the climate and clean energy program at the Natural Resources Defense Council (NRDC), said.

If a second Trump term happens, however, down-ballot effects would likely ensure that the Senate stays in Republican hands. Wyden has said that his preferred extensions of tax credits for electric vehicles, solar, wind and energy-efficient buildings, as well as expansions of existing credits to apply to fuel cell vehicles and storage, are highly unlikely to pass a Republican-majority Senate.

Evolving attitudes?

Given the GOP’s recent track record, including nominating a presidential candidate who campaigned on the idea that climate change is a "hoax," there are questions about how realistic it is that any significant number of Republicans would support any legislation dealing with climate change. 

"There are a number of Republicans who are evolving on the climate issue," according to Mackler. The commitments to carbon neutrality being made across the private sector have changed the conversation in a way that makes the right feel more comfortable talking about climate issues, he observed. "The signals coming out of Congress from the Republicans are different now. It was difficult to have a conversation with a Republican office 18 to 24 months ago. And that’s not the case now," Mackler said.

Evolution in Republican attitudes about climate change, however, does not necessarily translate into support for the Democratic agenda and its pursuit of mandatory emissions cuts. There is more concern and willingness by Republicans to consider climate policies than is often portrayed, according to Rich Powell, executive director of ClearPath, a conservative nonprofit that advocates for reducing CO2 emissions through policies to support the development of clean energy technologies like nuclear, storage, geothermal and carbon capture. But economy-wide mandates that penalize CO2-emitting energy sources go too far, in the group's view. ClearPath focuses "on approaches that make clean energy cheaper, not traditional energy more expensive," Powell said, and has been supportive of the innovation bills in Congress.

That is not to say no Republicans are willing to support a clean energy standard of sorts. Earlier this year, Reps. David McKinley, R-W. Va., and Kurt Schrader, D-Ore., outlined draft legislation that they positioned as a bipartisan alternative to the Green New Deal. Their approach has been dubbed "innovate first, regulate later" because it marries an emissions reductions standard that would kick in only after about a decade, following billions of dollars being invested into technologies like carbon capture, advanced nuclear and renewables backed by storage. 

The McKinley-Schrader standard of 80% reduction in CO2 emissions by 2050 would be accompanied by a suspension of all greenhouse gas regulation of fossil fuel-burning power plants. Instead, a clean energy credit trading scheme would allow utilities that emit above limits to buy offsetting credits.

McKinley-Schrader indicates that at least some House Republicans, even one from fossil fuel-heavy West Virginia, can support some legislation that mandates major CO2 emissions cuts at a future date. The Senate may be another story, however. Beyond the challenge of convincing enough Republican senators to vote for a clean energy standard to get past a filibuster, Sens. Kyrsten Sinema, D-Ariz., and Manchin, may decide not to support "sweeping legislation" on emissions, predicts Kenny Stein, director of policy and federal affairs for the American Energy Alliance, an advocacy group that opposes carbon regulation, government financial support for renewable energy and has endorsed the re-election of President Trump.

"There will be a good opportunity on a 'spend all the money on research' bill," Stein said. "There are plenty of Republicans — House and Senate — that will vote for that. But that won’t be a clean energy standard or tax credits."

A compromise bill

A compromise energy spending bill may resemble the innovation legislation proposed in Congress, but with additional provisions added to account for the inability to pass a sweeping climate bill.

An August paper from the Atlantic Council Global Energy Center envisioned what a bipartisan energy infrastructure bill could look like. "Embedded in such a package could be significant enhancements of tax benefits and, perhaps, direct payment options for renewable and zero-emission energy producers and much-needed infrastructure enhancements, such as broadband internet access (which facilitates digitalization of the grid) and high-voltage direct current (HVDC) transmission to facilitate nationwide access to regionally-produced zero-emission power," authors David Goldwyn and Andrea Clabough wrote.

"There are some areas of collaboration, but we think they are fairly limited," Clabough said in an interview.

Transmission infrastructure could be a particularly fruitful bipartisan issue because it could be part of an economic stimulus package due to the jobs created by large construction projects like new transmission lines, Clabough said.

"We need a 21st century grid, and we think there is potential for the bipartisan support for that."

Gregory Wetstone

President and CEO, American Council on Renewable Energy

Investment into more transmission lines is a major priority for many renewable energy advocates because the lack of transmission connecting places with robust wind and solar resources to population centers is holding back larger expansions in the use of renewable energy. These transmission lines would lead to economic development in several red states, increasing the chance of bipartisan support.

"We need a 21st century grid, and we think there is potential for the bipartisan support for that," Wetstone said. "[There is] increasing awareness that we have a 1950s grid and other countries are moving by us," Wetstone said.

Best and worst case scenarios

In his Stanford panel discussion with Murkowski, Whitehouse also said that an innovation bill could pass with bipartisan support, but he stressed that the priority for Democrats in Congress should be to pass legislation cutting emissions, even if they have to do so without Republican support. "This is an urgent enough problem that we have to go forward — if we can’t find Republican help — with the tools at our disposal. We walked away from this problem in the Obama administration and I don’t think we can do that again," Whitehouse said.

Murkowski, however, replied that a major climate policy passed without at least some cooperation from the minority party would not be an enduring policy. "What you will have is a policy put in place for this administration, and every subsequent administration you will have the Republicans doing everything they can to erode it," she said. "It will be the [Affordable Care Act] all over again."

Whitehouse agreed that "we’ll do better if we can do this bipartisan. That’s the best-case scenario." But, he added, "the worst-case scenario is we don’t get anything done. So if we have to settle for partisan, I guess that’s what we will have to settle for."

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