The Supreme Court dealt a blow to the executive branch’s ability to regulate carbon emissions, effectively insisting that Congress take back its jurisdiction over environmental regulations and muddying the legislative waters in the last crucial weeks of the summer session.
The court’s 6-3 decision in West Virginia v. Environmental Protection Agency on June 30 set back President Joe Biden’s climate agenda by curtailing the EPA’s power over the energy sector’s greenhouse gas emissions, meaning Congress will likely have to pass these regulations. The Biden administration and Democratic lawmakers are desperate to pass some form of climate infrastructure bill as time runs out to tout Democratic-led accomplishments before the midterm elections.
Biden’s ambitious green energy program aims for 100% carbon-free electricity by 2035 and for half of new vehicles sold to be electric within the same time frame. He was working through the EPA to craft policies to forward this goal, but with the recent ruling, the administration will have to either get creative or collaborate.
With the Senate split 50-50 along party lines, any effort to impose these regulations must appeal across the Democratic spectrum. Senate Majority Leader Chuck Schumer (D-NY) is determined to make a deal to pass something that addresses the climate.
“Make no mistake — the consequences of this decision will ripple across the entire federal government, from the regulation of food and drugs to our nation’s health care system, all of which will put American lives at risk, making it all the more imperative that Democrats soon pass meaningful legislation to address the climate crisis,” Schumer said in a statement after the opinion came down.
True to his word, climate and energy provisions are now critical pieces of the reconciliation legislation, taking center stage as time runs out before the monthlong August recess. The bill is similar to Biden’s failed social spending bill, Build Back Better, and includes provisions that incentivize clean energy production and tax methane emissions. It needs the backing of centrist Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), who tanked the original Build Back Better bill last year when they refused to change Senate filibuster rules.
Manchin and Schumer reportedly reached a deal on the bill’s healthcare portion, boding well for this attempt at passing something. In addition, Manchin has hinted that he favors a carbon border adjustment tax on imports, in which the duty on imports would correspond to the carbon emissions that went into the production of the imported goods.
“The reason we have Democrats and Republicans talking about a border adjustment, we think that’s the only level playing field we might have [against China],” Manchin said at a recent appropriations hearing.
This Supreme Court term has been problematic for some key Democratic policies, such as abortion rights in the overturning of Roe v. Wade and a rebuke of strict New York gun laws. Schumer has seemingly decided that his best option is to prioritize the reconciliation bill with the environmental provisions because any legislation on abortion would require reforming filibuster rules and a bipartisan gun bill already passed in the Senate.
This could upend months of work on the United States Innovation and Competition Act, also known as the Bipartisan Innovation Act and the CHIPS Act, which if not passed by the end of July may not pass at all, according to Punchbowl News. This bill is mainly concerned with addressing the computer chip shortage affecting some of the supply chain problems, but it also includes many other infrastructure-related concerns.
Senate Minority Leader Mitch McConnell (R-KY) said he wouldn’t push to get USICA done before the recess if Schumer decided to prioritize the reconciliation bill, which is the case. Over 100 lawmakers from both chambers have been trying for months to reconcile the two versions of USICA passed by the House, with over 1,000 items apparently still needing to be addressed. The deadline for compromise has floated further into the future each month of the negotiations.
How Congress’s reaction to West Virginia v. EPA and the other significant Supreme Court decisions play with Democratic voters in the midterm elections is an open question. With the ball squarely back in the legislature’s possession over specific concerns, some see voters being encouraged to vote Democratic for the chance to codify environmental protections or abortion access. Others say voter turnout will be depressed if Democrats can’t secure protections despite having control of both chambers of Congress and the White House.
“From a political standpoint, frustration with these rulings can be used by Biden and the Democrats to galvanize voters in the midterms,” Democratic strategist Tom Cochran said. “When a conservative opposition is making headway, Democrats have something tangible to run or rally against.”
