President Biden Executive Order Leverages Federal Government's Buying Power to Tackle Climate Change

Yesterday, President Biden signed an Executive Order (EO) on “Tackling the Climate Crisis at Home and Abroad,” emphasizing the national security and foreign policy facets of the climate crisis, and announcing a coordinated, whole of government approach to reduce climate pollution, deliver environmental justice, and spur economic growth.

Significantly, the EO marks the first time in which the full buying power of the Federal Government has sought to be harnessed and directed at pursuing ambitious, economy-wide climate objectives. In pursuit of those objectives, the EO broadcasts the Biden administration’s policy to “align[] the management of Federal procurement . . . to support robust climate action,” and follows on by detailing numerous measures in to effectuate the administration’s climate policy.

• Section 205 of the EO calls for the development of a new Federal Clean Electricity and Vehicle Procurement Strategy within 90 days. Specifically, the EO directs that the Chair of the Council on Environmental Quality (CEQ), the Administrator of the General Services Administration (GSA), and the Director of the Office and Management and Budget (OMB), in coordination with other departments, to develop a comprehensive strategy to “create good jobs and stimulate clean energy industries by revitalizing the Federal Government’s sustainability efforts.” The Strategy shall leverage “all available procurement authorities” to achieve, in relevant part: (1) a carbon-free electricity sector no later than 2035; and (2) a fleet of clean and zero-emission vehicles for federal, state, local, and tribal governments, including the U.S. Postal Service. 
• Section 206 of the EO directs agencies to “adhere to the requirements of the Made in America Laws in making clean energy, energy efficiency, and clean energy procurement decisions” and, in particular, apply and enforce the Davis-Bacon Act and prevailing wage and benefit requirements when making procurement decisions. Additionally, Section 206 directs the CEQ Chair to assist the Federal Acquisition Regulatory (FAR) Council in developing “regulatory amendments to promote increased contractor attention on reduced carbon emission and Federal sustainability.”
• Section 209 of the EO directs agencies to identify and eliminate all fossil fuel subsidies provided by the respective agencies, and directs OMB, in coordination with agencies and the National Climate Advisor (NCA), to eliminate fossil fuel subsidies from the President’s budget beginning in FY 2022.
• Section 210 of the EO directs agencies to “identify opportunities for Federal funding to spur innovation, commercialization, and deployment of clean energy technologies and infrastructure” and that OMB and the NCA ensure that federal funding is prioritized for such purposes in the President’s FY 2022 budget.
• Section 211 of the EO directs each federal agency to develop a Climate Action Plan that shall, among other things, “describe the agency’s plan to use the power of procurement to increase the energy and water efficiency of United States Government installations, buildings, and facilities and ensure they are climate-ready.”

Yesterday’s EO was foreshadowed in President Biden’s January 25, 2021 remarks—following his signing of an Executive Order on “Strengthening Buy American Provisions”—in which the President reiterated his campaign pledge to make hundreds of billions of dollars available for research and development in “battery technology, artificial intelligence, biotechnology, [and] clean energy,” and to replace the Federal Government’s fleet of vehicles with “clean, electric vehicles made right here in America by American workers.”

The EO’s whole of government approach is also consistent with Congress’s priorities as expressed in the National Defense Authorization Act for Fiscal Year 2021, which establishes under Section 319 an alternative fuel vehicle pilot program that requires the Department of Defense to expand its use of alternative fuel non-tactical vehicles.

Accordingly, contractors should expect an increase in the number of solicitations for alternative fuel vehicles, given that the federal fleet consists of over 645,000 vehicles—245,000 civilian vehicles, 173,000 military vehicles, and 225,000 post office vehicles according to the latest Federal Fleet Report. Moreover, the EO clearly signals an imminent upsurge in procurement dollars for products and services designed to advance the Biden administration’s climate objectives.

Crowell & Moring is tracking these developments. For a detailed account of the EO’s broader provisions, click here.