When residents of the United States wake up on Wednesday, they may well find Republicans have won a majority in the House and even Senate. It seems unlikely the GOP will gain a filibuster-proof majority in the upper chamber, which means its more sweeping legislative dreams are probably off the table. But control of even one chamber will offer Republicans the ability to throw a wrench in just about anything Democrats might want to do between now and the end of the Biden administration—particularly on climate change.
One indicator of the priorities of a new Republican majority lies in the recommendations of the Energy, Environment, and Conservation task force that Kevin McCarthy, the aspiring next House speaker, unveiled over the last several months. But those are largely limited to bills that are unlikely to pass if (as expected) Republicans fail to get 60 votes in the Senate. Instead, Republicans are likely to extract wins from must-pass spending bills or by intervening in agency rulemaking processes.
McCarthy has already indicated Republicans would refuse to raise the borrowing limit without enforcing steep spending cuts. The incoming leadership of the GOP, in other words, is prepared to risk the U.S. credit rating and a default on U.S. Treasuries—core to the plumbing of the global financial system—to get its way, slashing Social Security, Medicaid, and maybe even the methane fee and other climate measures put in place by the Inflation Reduction Act. The last time a similar showdown happened, in 2011, Standard & Poor’s downgraded the U.S. credit rating for the first time ever.
Democrats have options to preempt that somewhat apocalyptic scenario, which might arise as soon as early 2023. A still Democrat-controlled Congress could raise the debt ceiling during the lame-duck session through a party-line budget reconciliation vote. The measure is reportedly being explored by Democratic leadership, but would require courting votes from radical centrists that have expressed skepticism about the idea over concerns about fiscal responsibility. The same is true of ideas for a bill allowing the administration to raise the debt ceiling directly. Biden himself has called the idea of abolishing the debt ceiling altogether “irresponsible.”
But Republicans’ debt ceiling brinkmanship could pose a threat to Biden’s regulatory agenda too. Through the appropriations process, Republicans with majorities in the House and Senate could write provisions into must-pass spending bills that would prevent agencies from using their own funds to draft certain regulations.
Whether they control one house or both, Republican-controlled committees will be keen to slow down any new regulatory changes that the White House has already made or might want to push through before 2024. While House and Senate committees can’t abolish regulations, they can cause a headache for federal agencies and suck up staff time. Among other things, they could turn the investigatory powers that Democrats have used since regaining the majority there in 2018—most notably through the January 6 committee—back on them, using existing and new committees to request mountains of documents from federal officials and political adversaries, along with green groups and anyone else they might want to inconvenience.
“It’s a target-rich environment,” George David Banks—a fellow at the Bipartisan Policy Institute and chief strategist for Republicans on the House Select Committee on the Climate Crisis, who also served in the Trump administration—said of the GOP’s prospective new oversight powers. “It’s going to really hobble the administration’s ability to come up with regulations.”
Investment metrics like environmental, social, and corporate governance, or ESG, ratings have recently become a GOP bête noire: Since 2021, Republican lawmakers at the state level have accused financial firms of discriminating against fossil fuel companies in pursuit of a woke agenda. Banks predicts this fight may now be taken to the federal level. He said he expected that major asset managers like Blackrock and the agencies responsible for ESG ratings, including the Wall Street firm MSCI, could be brought in for questioning.
Such probes could also be an issue for the agencies tasked with implementing the Inflation Reduction Act. Officials at the Department of Energy could be inundated with requests for documents and for appearances before congressional committees as the GOP looks for the “next Solyndra,” seeking to show that climate funds are giving money to wasteful, unnecessary projects. Since many of the big-ticket items in that bill will be meted out under the tax code, the Internal Revenue Service—already in Republican crosshairs—may well face new scrutiny on climate grounds. The Environmental Protection Agency, E&E News reports, may confront probes into air quality rules and electric vehicles. But any agency working toward the White House’s “all of government” approach to climate change could face scrutiny. That might include lesser-known bodies like the Treasury’s Office of the Comptroller of the Currency, which has taken a particular interest in climate-related financial risk.
“We will use the resources of the Oversight committee to put the interests of the American people first, not radical environmental special interest groups, and will provide our findings to the committees of jurisdiction to inform policy solutions,” Kentucky Congressman James Comer—the top-ranking Republican on the House Oversight and Reform Committee—told E&E News. Speaking to Politico, Comer called out the Securities and Exchange Commission in particular for “pushing President Biden’s radical climate agenda through regulation that could drive up the costs of goods and services for Americans.”
Even a thin majority in the Senate could also allow Republicans to block outstanding administration appointments through the confirmation process, placing a further strain on administrative capacities. At independent federal agencies there are still 17 vacant seats and 17 pending nominations, which require Senate confirmation. Overall, there are some 341 outstanding appointments that could be vulnerable to Republican obstruction should Republicans take the Senate, according to a spreadsheet shared with The New Republic by the Revolving Door Project, which tracks the appointment process. Those include climate-relevant posts at the Department of Interior, EPA, and Department of Energy, as well as in the courts, where Biden has yet to nominate 40 district court judges; another 40 have yet to be confirmed.
The longer new rules are delayed, the greater the number that can be scrapped entirely should Republicans take over the executive branch and hold both the House and Senate come 2024. Under the Congressional Review Act, a new GOP administration could spend the first several months of 2025 dismantling (“disapproving”) rules enacted at the end of the Biden administration. That Clinton-era law allows Congress to roll back rules issued in the last 60 in-session days with a simple majority vote in each chamber and the president’s signature. That period can last for several months, depending on the congressional calendar. If Republicans end up controlling the White House and both chambers, the CRA disapproval process offers a significant advantage over simply reversing changes at the agencies or via executive order: When successful, it prohibits agencies from enacting “substantially similar” statutes in the future. Congress had only used that authority once before 2017, when the Trump administration and a Republican-controlled Congress overturned 14 Obama-era statutes using the Congressional Review Act.
If Democrats want to protect new, potentially controversial climate rules from this fate, they’d need to get them into the federal register by June 2024, said Peter M. Shane, who teaches administrative and U.S. constitutional law at New York University. While several such rulemaking processes are already underway, any new ones hoping to meet that timeline need to be announced soon. “If I were the general council of EPA or any other agency with an ambitious regulatory agenda, I’d be trying to get my initial notice of proposed rulemaking out there sometime this winter—as close to the start of the calendar year as possible,” Shane added.
Even without the White House, a Republican-controlled Congress would likely make generous use of the CRA, says Banks. First on the chopping block would be any new rule proposed by the SEC on climate risk disclosure. “You can bet that’s number one,” Banks said. Next up would be a forthcoming methane rule from the EPA and a long-delayed statute on power plant emissions. “You can almost say with certainty that any environmental regulation that comes out of the EPA that focuses on GHG reductions is going to get CRA’d,” he added. Even without the possibility of getting a regulation overturned, Banks says, the CRA will be a mainstay of Republican strategy. “You would do it to put Democrats on the spot because they have to take the vote,” Banks says. If Republicans also take the Senate, then “the president has to decide what the political costs and benefits are of vetoing it. It would complicate the decision-making process, especially if we’re talking about [regulations] that can be tied to energy costs.”
There are also, of course, broader concerns about a Republican control over one or both chambers, including the party’s increasingly shaky commitment to democracy. A GOP Congress could refuse to recognize a Democrat winning the 2024 presidential election for instance. One-party Republican rule wouldn’t be an especially welcome environment for reducing emissions. For now, the grim reality is that Republicans already have plenty of tools to slow or even reverse hard-won progress on climate change. Without resorting to any extraordinary measures, they could block much of the climate policy passed in the last year. And if Democrats want to limit the damage at all, they need to act fast.
