President-elect Joe Biden’s plans for aggressive climate regulations at the Environmental Protection Agency face huge challenges: a conservative-majority Supreme Court and dozens of Trump-era rollbacks.
The EPA is poised to play a critical role in the Biden administration’s climate agenda, the most ambitious of any president, especially if it confronts a Republican-controlled Senate unwilling to advance major legislation restricting greenhouse gas emissions.
And while Biden will look to institute policies all across the government to curb emissions, the EPA is likely to serve as the hub of efforts to reinstate greenhouse gas limits for major sectors of the economy weakened during the Trump administration. In many cases, it’s likely the EPA will be expected to ratchet up those standards from their Obama-era levels, especially for top-emitting industries such as passenger cars, power plants, and oil and gas production.
However, former EPA officials, some environmentalists, and other experts are warning the incoming Biden team it will have to balance its ambition with statutory limitations.
The Biden administration faces a Supreme Court stacked with three Trump nominees, solidifying a conservative majority likely to take a narrow view of the EPA’s ability to regulate greenhouse gases. That court could also seek to chip away at parts of the agency’s climate authority, some experts say.
“While the monumental challenges of the climate crisis demand an aggressive approach, the constraints and risks of exercising regulatory authority warrant a thoughtful assessment to define where to regulate and where to apply other leverage,” reads a report from a host of Obama administration alums and other climate experts delivered Wednesday to the Biden transition team.
The EPA section of that report was written by a trio of Obama-era officials, including Joseph Goffman, the former top legal official in the EPA’s air office who now sits on Biden’s transition team for the agency. They call on the Biden administration to evaluate closely what climate policies are worth it to pursue and to ditch the more legally risky ones.
The limitations might mean Biden will find it harder to accomplish some of his boldest campaign promises, such as achieving a carbon-free power sector by 2035.
“Whether you want to get to carbon-neutral by 2030 or 2035 or 2050, whatever it is, I think you ultimately need new legislation,” said Nathan Richardson, an associate law professor at the University of South Carolina and a university fellow with Resources for the Future. “That’s even more true with this Supreme Court than it would be otherwise.”
The riskier options
More “creative” ideas floated by environmentalists, such as setting federal air quality standards for carbon dioxide or using a section of the Clean Air Act dealing with global environmental problems to create a nationwide climate program, are “completely off the table,” said Jeff Holmstead, a partner with Bracewell LLP who served as the EPA’s air chief during the George W. Bush administration.
“I don’t think they would have passed muster with the pre-Trump Supreme Court, but they would certainly be struck down now,” he said.
The Biden EPA is likely to also run into legal hurdles if it attempts to return to Obama-era carbon limits for power plants, the centerpiece of its climate agenda known as the Clean Power Plan. The Trump EPA replaced that regulation with much narrower requirements. But even in 2016, the Supreme Court paused the Obama rule before lower courts had even ruled on it, a rare out-of-turn move that signaled at least some of the justices then thought it was too expansive.
“There is no world in my mind in which the Obama-era Clean Power Plan can live again,” said Glenn Schwartz, energy policy service director at Rapidan Energy Group.
He added the likely “swing votes” on the Supreme Court on environmental issues now are Trump appointees Justice Brett Kavanaugh and Justice Neil Gorsuch, both of whom are wary of stretching the bounds of the EPA’s authority under law.
“What you’re likely to see, and I think this is wise, is that the Biden administration EPA is going to be very careful to color inside the lines of the law,” said Conrad Schneider, advocacy director for the Clean Air Task Force.
That doesn’t mean a Biden EPA would have to sacrifice climate ambition, though. Schneider suggested a Biden administration should look very closely at what emissions reductions it could prompt using the Trump-era approach, which requires only the cuts fossil fuel power plants can achieve by improving efficiency.
The safer bets
However, there is general agreement that the Biden EPA could seek to strengthen two major climate policies put forward by the Obama administration without serious legal risk: fuel economy standards for passenger cars and limits on the potent greenhouse gas methane from oil and gas operations.
For those rules, Trump-era actions relaxing those standards are already making their way through the courts. A Biden administration can tell the courts to send the rule back to the agency for reconsideration, essentially eliminating the Trump approach and reverting to the Obama-era standards while it rewrites the limits, Schwartz said.
A Biden EPA would also likely want to eliminate Trump’s action blocking California from setting its own, stricter greenhouse gas tailpipe standards, said Betsy Southerland, former director of science and technology in the EPA’s Office of Water until 2017.
That could help states accelerate policies to cut emissions from the transportation sector. For example, California would need that authority to implement Gov. Gavin Newsom’s directive from September requiring all new car sales in the state to be zero-emissions by 2035. At least two states, New Jersey and New York, have signaled they’d be open to adopting similar requirements.
On methane, too, a Biden EPA could take controls one step further, expanding them to cover all existing oil and gas wells, instead of just new operations, Schneider said.
The Clean Air Task Force has estimated such stronger regulations could address nearly two-thirds of the sector’s emissions. Schneider added the Biden EPA might even see some support from oil majors on that effort, given their opposition to the Trump rollback.
Tackling Trump rollbacks vs. Biden’s agenda
Whether to undo every Trump-era deregulatory action will be a critical decision for the Biden EPA. The Trump administration wiped out or rewrote several dozen Obama-era climate and environmental regulations, and undoing each of those or replacing them would involve a years-long, intensive regulatory process.
The Biden administration is also unlikely to have access to quicker means of eliminating Trump’s actions through congressional action.
“There’s no sugar-coating it. It’s a really difficult challenge for the administration,” Richardson said. “Even without legal barriers, the destruction of the past administration has dug them into a hole.”
Environmentalists and former Obama officials say the Biden EPA will have no choice but to undo some Trump actions because they would hinder its ability to set stricter environmental controls. Those include two rules the Trump EPA is likely to push through before January: a rule restricting what types of science the agency can use and one changing how the EPA calculates the costs and benefits to justify pollution limits.
But the Biden administration will have to choose its priorities.
“For the Biden administration, they have a proactive agenda, which is to address climate change, to focus attention on environmental justice, and to protect the nation from air, water, and land pollution,” said Janet McCabe, a professor at Indiana University’s School of Law who served as the Obama EPA’s air chief.
“If all you’re doing is undoing things you didn’t like, then you don’t have time to go forward with your own proactive agenda,” she added.
