President Joe Biden’s options for tackling climate change are shrinking rapidly in the face of a pivotal Supreme Court case and the collapse of a major spending bill.
Biden campaigned on an ambitious goal of halving U.S. greenhouse gas emissions by 2030. But a case the Supreme Court will hear Monday, West Virginia v. Environmental Protection Agency, could take away one of the administration’s most powerful tools: its ability to regulate carbon dioxide under the Clean Air Act. Coal companies and conservative-led states argue, in an effort to prevent or slow the ongoing death of coal, that the EPA lacks authority to make what they say would be sweeping changes to the energy system.
And the Build Back Better Act, which has been called the most significant piece of climate-related legislation in the country’s history, is in shambles, with no obvious path forward.
That leaves Biden few avenues for making a major impact on U.S. climate policy, at a time when scientists here and around the world say action is more urgent than ever. Keeping global warming to a targeted 1.5 degrees Celsius (2.7 degrees Fahrenheit), which would stave off some of the most catastrophic effects of climate change, will require immediate and massive reductions in emissions. The U.S. is trying to regain its climate leadership role on the world stage after four years of the Trump administration’s denial and delay. Navigating the shrinking menu of options for achieving those goals is a critical part of Biden’s agenda.
“The bottom line is, things are just really up in the air,” said David Adelman, an expert in environmental law and climate change policy at the University of Texas at Austin. “Especially with the Supreme Court case, which, I would say most people are pretty pessimistic.”
West Virginia v. EPA took shape as a challenge to the Obama administration’s Clean Power Plan (CPP), introduced in 2015. It would have required energy companies to shutter many coal plants or switch them to burning the somewhat cleaner natural gas in order to cut carbon dioxide emissions. More than two dozen Republican-led states sued to stop the CPP and won a stay in a 5-to-4 Supreme Court decision in early 2016, just days before Justice Antonin Scalia died. The Trump administration later scrapped the plan entirely.
Although Biden has yet to offer a new rule in its place, legal challenges to the Obama administration’s plan have now reached the country’s highest court, still focused on whether the EPA can regulate CO2 under the Clean Air Act — an authority granted to the agency in a previous Supreme Court case, Massachusetts v. EPA, in 2007.
The case has spawned dozens of briefs both in support of those seeking to stop EPA’s regulatory abilities — including, just for example, one from conservative think tank the Claremont Institute written by conservative lawyer and Donald Trump ally John Eastman, of Jan. 6 memo fame — and in opposition. Though there are a variety of ways the case could be decided, at its root a decision against the EPA would make it difficult for the agency to regulate climate change-causing emissions in meaningful fashion.
But even if regulating CO2 is off the table, Adelman said the EPA might be able to make progress on climate change by focusing on other pollutants clearly within its legal authority. Some of these pollutants are themselves contributing to climate change by trapping heat in the atmosphere; others are produced alongside heat-trapping gases, so limiting them could also limit pollution that warms the planet.
“There are indirect ways to achieve the same end result. Because pollutants like particulate matter, or NOx [nitrous oxides], or VOCs [volatile organic compounds] … and concerns about ozone pollution could justify EPA regulating motor vehicles or power plants more stringently,” he said. “But it would all have to be somewhat of a subterfuge.”
He added that it could bring even more scrutiny on the agency, likely leading to yet more litigation.
In his first year in office, Biden has used executive action to start restoring some of the climate and environmental protections gutted during the four years of the Trump administration. On his first day, he revoked the permit for the controversial Keystone XL pipeline — which would have brought some of the dirtiest oil on the planet from Canada down across the Midwest. That led its developer to officially cancel the project a few months later.
The president also restored protections for land that the Trump administration had carved off the Bears Ears and Grand Staircase Escalante national monuments in Utah to allow mining and drilling of fossil fuels.
More generally, Biden signed a first-day executive order charging the heads of federal agencies with reviewing the glut of environmental rollbacks from the Trump years “and to immediately commence work to confront the climate crisis.” But undoing Trump’s damage isn’t perfectly straightforward; experts have said some of the policies he implemented could take years to undo.
Call it by its name
Beyond traditional regulatory approaches, some in government and in the environmental movement have advocated using another approach to tackle climate change: emergency powers.
“The climate emergency in and of itself is such a pinnacle of what an emergency looks like, in the sense of how grave the impacts are and how immediate we need the actions to be,” said Jean Su, an attorney with the nonprofit Center for Biological Diversity. Last week, the center released a report detailing the actions that Biden could take using the National Emergencies Act, the Defense Production Act and the Stafford Disaster Relief and Emergency Assistance Act.
The random nature in which climate disasters strike — no one knows exactly where or when the next fire, flood or hurricane, all supercharged by climate change, is going to hit — means climate change should qualify as a relevant emergency under those long-standing statutes, Su said.
Invoking the National Emergencies Act would allow the administration to do three climate-friendly things: stop the export of crude oil, end all offshore oil and gas drilling, and stop the financial support for fossil fuel projects abroad, she added. The Defense Production Act — a statute Biden invoked last year to speed the production of covid-19 vaccines, tests and masks — could be harnessed to spur the manufacture of renewable energy and clean vehicles and free up $650 billion in federal purchasing power to ensure demand for those products. And the Stafford Act could be used to prod the Federal Emergency Management Agency to build out renewable energy capacity in vulnerable communities suffering from the effects of fossil fuel pollution and related disasters.
“The Biden administration made it very clear that climate and environmental justice were going to be pillars of the administration,” Su said. “If it actually wants to follow through on that legacy … I think it’s just prudent and wise to look at all the different powers that you can have to make that happen.”
The idea of using emergency powers has some support in Congress. Last year, Democratic Reps. Earl Blumenauer of Oregon and Alexandria Ocasio-Cortez of New York introduced the Climate Emergency Act, which now has more than 50 co-sponsors. Vermont Independent Bernie Sanders has introduced a Senate equivalent. The bills direct the president to declare a national emergency with respect to climate change, and to take a number of actions aimed at cutting emissions and adapting to the changing climate. The administration has given no indication it plans to do this without a legislative push; the White House did not respond to Grid’s questions on the matter.
But not everyone thinks that the emergency powers tactic would succeed.
“I can understand the desire to use that type of authority,” Adelman said. “I think there would be really serious backlash, and it seems like they wouldn’t be that long-lived.” He said that there is still a chance that some remaining shreds of the Build Back Better Act might be passed in piecemeal form, such as incentives for renewable energy construction and a streamlining of federal review processes for clean energy projects. “We need to do so much so fast, but we also need kind of a stable policy environment to really move things forward in the way we need to.”
Any use of emergency powers by Biden would almost certainly face its own set of legal challenges from opponents of climate action. Just as experts are pessimistic about the administration’s chances of prevailing in West Virginia v. EPA, the broader judicial outlook seems stacked against climate action in the current environment. Blumenauer, though, told Grid he expects the approach to hold up.
“The vast majority of us understand that we are living in a climate crisis, one that needs a whole of government response,” he said. “We believe our resolution would survive the scrutiny of the courts, and more importantly than that, is absolutely necessary to halt, reverse, mitigate and prepare for this growing crisis.”
Su added that lawsuits take a long time to wind their way through the court system, and that lag can be used as a way to start a market shift that might become self-sustaining even in the face of later judicial defeats. “We really just need this engine to be ignited and let it flow, and that’s where executive powers come in,” she said. “It could be overturned in time. It could be overturned by the next president. But we have two to three to four years to run as fast as we can.”