Environmental advocates were bitterly disappointed on Sunday, when Sen. Joe Manchin, D-W.Va., announced that he wouldn’t provide his crucial vote for Build Back Better, President Biden’s omnibus spending bill that contains $555 billion for fighting climate change. But they were greeted the very next day with welcome news: The Environmental Protection Agency finalized a rule that will require manufacturers of cars and light trucks to decrease their greenhouse gas emissions.
Under the new rule, auto manufacturers must cut vehicle emissions between 5 percent and 10 percent from 2023 to 2026. In 2026, cars will be required to get 40 miles per gallon.
These twin developments foreshadow what may be the future of climate change action for the duration of Biden’s time in office: using the power of the executive branch to reduce greenhouse gas emissions.
But as former President Barack Obama’s efforts to use regulations to combat climate change showed, such efforts are subject to the whims of federal judges and can easily be undone by the next president.
White House press secretary Jen Psaki alluded to this approach in a Monday press conference in response to a question about whether Biden can achieve his climate change goals without congressional legislation.
“There are multiple paths to achieving President Biden’s climate goals,” Psaki said. “We have every intention of passing Build Back Better, which includes enormous climate provisions. I would note that there are a number of steps we have taken without legislation, and certainly, we’ll continue to build on that.”
The federal bureaucracy has vast powers under existing laws, including restricting the production of pollutants, using federal government land and waters to produce fossil fuels, or green energy, and approving everything from pipelines to power lines.
On Monday, Psaki mentioned new rule-making processes that have been recently initiated by the EPA for phasing down hydrofluorocarbons, powerful greenhouse gases used in products such as refrigerators and air conditioners, and a rule in the works to limit the leakage of methane, another powerful greenhouse gas, in oil and gas drilling operations.
While some environmental activist groups such as the Natural Resources Defense Council are still hoping that Manchin will vote for some version of Biden’s climate change agenda, others have pivoted to calling for the administration to move on to using every other tool at its disposal.
“President Biden now has a mandate to pull out all the stops to confront a rogue fossil fuel industry in 2022,” said Janet Redman, climate campaign director at Greenpeace USA in a statement released late Monday afternoon. “We expect a full-court press of executive actions to end fossil fuel expansion. ... Biden must go all-in with executive authority to address the climate emergency and do what he promised.”
It’s an approach that has been tried before, during the last six years of President Barack Obama’s term, with limited success. After legislation to reduce carbon emissions through capping them and allowing companies to trade emissions credits failed to pass the Senate in 2010, Republicans took control of Congress, ending any prospects of congressional climate action.
Obama then gradually began to ramp up executive action to limit climate change. The EPA promulgated higher requirements for average fuel efficiency in passenger vehicles, the first-ever restrictions on carbon dioxide emissions from power plants and new standards for other pollutants produced by fossil fuels, such as coal ash. (While not directly climate-related, any rule that makes it harder or more expensive to burn fossil fuels incentivizes electric utilities to switch from them to cleaner energy sources.) In Obama’s last two years in office, the Department of Interior (DOI) began to reform its programs for leasing fossil fuel extraction on federal land, including closing a loophole that allowed coal companies to underpay royalties.
“I think back to after cap-and-trade went down in 2010, and President Obama was facing some of these same questions about how to go forward, and he said, ‘There’s more than one way to skin a cat,’” Pete Ogden, vice president for energy, climate and the environment at the U.N. Foundation, told Yahoo News. “I think you saw over the subsequent years, the building up of an alternative to that cap-and-trade system, another kind of vision for how climate action could be carried forward in the United States.”
But the federal rule-making process is slow, requiring lengthy periods for public comment and review before being finalized and often leaving years to take effect so that industry has time to adjust. In the interim, corporations and sympathetic states almost invariably sue, requesting a stay of implementation until the rule has been adjudicated in federal court. Obama’s signature climate initiative, the Clean Power rule that would limit carbon dioxide emissions from power plants, was tied up in court when Trump took office more than a year after the regulation was published in the Federal Register.
Trump then proceeded to unwind every limitation on fossil fuels that he could. In the case of the Clean Power rule, Trump’s EPA argued that the Obama administration had overstepped its legal authority under the Clean Air Act in the way that it wrote the rule, and so it swiftly replaced the regulation with a much-weaker substitute.
That, in turn, triggered its own slew of lawsuits, several of which have been combined into West Virginia v. EPA, a case in which the U.S. Supreme Court will hear oral arguments next Feb. 28. Everyone expects the Biden administration to write a more ambitious Clean Power rule, but how much more ambitious it can be will be determined by the outcome of that case.
“The legal review is going to be key: What the courts will allow,” Holly Doremus, professor of environmental regulation at the University of California law school at Berkeley, told Yahoo News. “The current Supreme Court is not especially restrained. The current majority on the Supreme Court seems quite skeptical of strong administrative actions, particularly if the law is vague or unclear.”
When it comes to how the EPA should regulate climate pollution, the law is indeed somewhat unclear. The Clean Air Act requires the EPA to regulate pollutants “harmful to human health,” and during former President George W. Bush’s tenure, the Supreme Court ruled that the agency could no longer duck its obligation to regulate carbon dioxide as a pollutant. But some have argued that the flexible approach to reducing emissions that the Obama-era EPA offered, in which utilities could reduce pollution by various means, including helping homeowners improve energy efficiency, went beyond the law’s boundaries.
Now, with a more conservative court, there is the possibility that it could overturn the EPA’s authority to regulate carbon dioxide entirely, and the more likely possibility that it sharply constrains the ways in which the agency can regulate carbon emissions.
“I think it’s really dicey,” Doremus said. “Before Trump got his appointments to the Supreme Court, I would have said the Clean Power Plan would withstand review, but now I kind of doubt it.”
Nonetheless, Doremus noted that there are multiple regulatory avenues for Biden to pursue on climate change. One hotly contested area is federal land and ocean management. The Trump administration went full throttle in leasing oil and gas drilling, which Biden promised on the campaign trail to end. Currently, all federal fossil fuel leasing is on pause, pending the outcome of DOI reviews and proposed reforms to the program. Conversely, the Biden administration is already attempting to ramp up solar and wind energy production offshore and on federal land. Other scenarios include tighter regulation of coal waste under the Clean Water Act and using the Federal Energy Regulatory Commission to block the construction of new oil and gas pipelines.
But as Trump already demonstrated, any climate change regulation written under Biden could face revision under his successor. In fact, the new clean car rules are actually a reversal of a reversal: Last year, the Trump administration had revoked Obama’s fuel efficiency standards. Given how long it takes federal rules to be implemented, that threat to Biden’s environmental legacy will be especially acute if he only serves for one term.
“As long as there’s not legislation, the next administration can reconsider rules,” Doremus said. “If you have a two-term presidency, eight years can be long enough to get some things entrenched. And eight years can change markets. With four years it’s more difficult. If Biden doesn’t win reelection or isn’t succeeded by a Democrat, it’s going to be problematic.”
Cover photo illustration: Yahoo News; photos: AP, Hans Gutknecht/MediaNews Group/Los Angeles Daily News via Getty Images.