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Evergreen Explains: How Congress Can Pass a Clean Electricity Standard with a Simple Majority in the Senate

One important hurdle still stands between America and a 100% clean power grid: The U.S. Senate. More specifically, the Senate’s antiquated filibuster rules that require a 60-vote supermajority to advance legislation.

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100% Clean Power Climate in Congress
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President Biden’s 100% by 2035 Clean Electricity Standard is picking up steam. Since Biden included a CES in his American Jobs Plan proposal more than 150 organizations across the climate movement have called for swift action to pass it, and even a group of the power companies that would be most impacted by a CES urged the administration to enact a strong federal standard.

But one important hurdle still stands between America and a 100% clean power grid: The U.S. Senate. More specifically, the Senate’s antiquated filibuster rules that require a 60-vote supermajority to advance legislation. 

Mitch McConnell and his obstructionist caucus have shown us that they won’t hesitate to abuse the filibuster to block climate progress. Earlier this week McConnell said he is “100% focused” on stopping President Biden’s agenda. But luckily there’s a way to pass a 2035 CES with just a simple majority in the Senate: Budget Reconciliation. In fact, passing a federal CES through reconciliation is not only possible, it may be our best option to bypass partisan obstruction and deliver the clean energy economic recovery that we need.

Senate Republicans have offered only unserious “infrastructure” proposals that completely ignore the climate crisis. Not only that, their proposal would result in less, not more, funding for critical needs like public transit. Democrats can pass a popular and bold infrastructure agenda that will deliver the clean energy economic recovery that Joe Biden ran and won on — and a 100% by 2035 CES is central in that agenda. A federal CES will create millions of jobs and put money back in consumer’s pockets, all while putting us on the path to dramatically decrease our nation’s carbon and criteria air pollution and meet our international commitments on climate change. Now, Democrats can’t allow bad faith Republican obstruction to stand in their way. 

Earlier this year, Evergreen and Data For Progress laid out the pathway for Congress to deliver a 100% CES to President Biden’s desk using budget reconciliation. As Congressional Democrats prepare to advance President Biden’s infrastructure and economic recovery agenda, here’s a refresher on how they can override obstruction and deliver the climate agenda that the American people voted for.

 

How to Survive a Byrd Bath

Budget reconciliation can be used for legislation that affects spending, revenues, and the federal debt limit—essentially, legislation that is focused on the budget. Any legislation that is advanced through budget reconciliation is subject to the constraints imposed by the Byrd Rule, which is designed to ensure that all provisions of a reconciliation bill have budgetary impacts that are not “merely incidental” to broader changes intended in policy.

According to a 2020 report from the Congressional Research Service, under the terms of the Byrd Rule, a legislative provision could be subject to removal if it falls under one of the six following definitions: 

 

  1. “it does not produce a change in outlays or revenues or a change in the terms and conditions under which outlays are made or revenues are collected; 

  2. “it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions; 

  3. “it is outside of the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure; 

  4. “it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision; 

  5. “it would increase the deficit for a fiscal year beyond the ‘budget window’ covered by the reconciliation measure” (typically 10 years); and 

  6. “it recommends changes in Social Security” (typically considered to include the Old-Age, Survivors, and Disability Insurance (OASDI) program, but not include Medicare or other programs established as part of that act).

 

Rulings on whether a piece of legislation is reconcilable are subject to the discretion of the Senate parliamentarian. The process is opaque, and therefore it is not possible to guarantee any given legislation through reconciliation will be successful, but understanding the rules and how they are interpreted gives us insight into how to design bills that are optimized to fit within reconciliation standards. 

Options for a Reconcilable CES

In A Roadmap To 100% Clean Electricity By 2035, Evergreen and Data for Progress outlined a number of different ways to design a federal CES that are all consistent with the Byrd rule and reconciliation. Each of these options was designed to pass the Senate with 51 votes and drive America’s power grid to 80% clean electricity by 2030 en route to 100% clean electricity by 2035.

One option, for an “on the books” CES, was written to mirror a traditional CES but in which the value of compliance for electric utilities, and the costs of non-compliance, would be brought onto the federal government’s balance sheet. Basically, utilities would be required to meet a growing percentage of their annual electricity demand with clean energy. In doing so they could derive financial benefit from the federal government, whereas, conversely, if they fell short they’d have to pay a penalty.

Another option involved the creation of a system of “reverse actions” for clean electricity. In this one, a federal agency would conduct periodic regional reverse-actions to procure from electricity generators the amount of clean power necessary to meet an increasing annual share of overall demand. This one, too, could provide financial benefit to utilities and with a fee penalize those that fail to meet increasing annual clean energy performance. 

A third option could be a program very similar to either of the former two, but in which a utility or power generator would receive financial benefit (or pay a compliance fee) based not on the percentage of clean electricity they deliver to customers, but instead based upon the carbon pollution reductions they achieved each year.

The report also offered 3 additional approaches for passing CES-alternative policies through reconciliation. The report authors also felt confident that many additional options could be possible.  

No matter the precise path chosen, right now it is critical that Democrats in Congress rise to this moment and respond to President Biden’s American Jobs Plan with bold legislation that invests in building a just and thriving clean energy economy and includes a federal Clean Electricity Standard (CES). This bill must be designed to pass with 51 votes in the Senate, and therefore through reconciliation.  

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