Joe Biden ran on the most ambitious environmental platform of a victorious presidential candidate ever. Reported at the beginning of his pursuit of the White House to be seeking a “middle ground” on the vexatious issue of climate change, he ended the campaign by proclaiming it not only “the No. 1 issue facing humanity” but “the No. 1 issue for me.” He even embraced the much-ridiculed Green New Deal, describing it as a “crucial framework” for confronting the challenge of climate change, and promised to “put the United States on an irreversible path to achieve net-zero emissions” by 2050.
Climate campaigners have long awaited the arrival of a champion in the White House. In Biden, they may have finally found their man. His victory, therefore, would seem to be their victory.
In point of fact, Biden’s triumph was no triumph for climate activism. Far from it. Climate change, despite appearances to the contrary, was something of a loser in the 2020 election.
Take the centerpiece of Biden’s climate plan: a pledge to spend $2 trillion over four years on what is, in effect, an enormous jobs program for unions (that it would “create millions of good-paying” unionized jobs is one of its selling points). The spending — sorry, investments — would go toward improving and expanding renewable and clean energy technology, accelerating production of electric vehicles, encouraging greater use of public transportation, and renovating, rebuilding, or constructing new building and housing stock and infrastructure to reduce carbon footprints. Consumers would receive rebates for installing or adopting more energy efficient devices. Successfully implementing these programs would go toward the plan’s objective “to achieve a carbon pollution-free power sector by 2035.”
Biden’s climate proposal would transform multiple sectors of the economy. It is sweeping in its reach and scope. And it is almost certain never to see the light of day. Voters made sure of that a month ago when they gave Republicans at least 50 seats in the Senate.
Because the plan relies primarily on spending and taxes — it would be funded by raising the corporate tax rate — the Senate could approve it with as few as 51 votes through the legislative process known as reconciliation, which allows spending and revenue bills to pass with only a majority and not the higher, filibuster-proof threshold of 60 votes. Senate Democratic Leader Chuck Schumer has stated he would use reconciliation to pass “a big, bold climate package.” Winning both Georgia Senate runoffs in January would give him the necessary 51 votes (with Vice President Kamala Harris breaking ties).
Yet in that case, he’d be dependent for his 50th vote on Joe Manchin. The West Virginia Democrat, who literally put a bullet through President Barack Obama’s cap-and-trade bill in a campaign ad in 2010, is unlikely to support anything with such a hefty price tag or that he believes would threaten his state’s embattled coal industry. Manchin also recently vowed he won’t vote to eliminate the filibuster, so that avenue for enacting Biden’s agenda is foreclosed.
Given Democrats’ reduced majority in the House, there’s no guarantee it could pass Congress’s lower chamber either. Republicans won’t provide a single vote for it, which means that, for all practical purposes, Biden’s climate plan is already dead.
That’s not to say Republicans would oppose everything. Biden could probably get GOP votes for modest increases in spending on renewable energy and infrastructure projects. They already back giving tax credits to farmers to implement carbon-capture technology, so that’s something else they might approve.
What they won’t support are more ambitious steps such as mandating emission-reduction targets for electricity generation. Neither would Republicans endorse Biden’s commitment to end “fossil fuel subsidies,” which are, in reality, standard tax breaks available to all corporations. A carbon tax remains off the table. “Real policy changes,” observed New York Times correspondent Coral Davenport, “cannot pass through reconciliation under Senate rules. They will need 60 votes” and GOP support. Biden will receive neither.
Senate Republicans could also reject the nomination of a proponent of aggressive climate policy to run the Environmental Protection Agency. The leading contender is California official Mary Nichols. She threatened to ban gas-powered vehicles in retaliation for President Trump’s revocation of the Golden State’s ability to set higher fuel efficiency standards for automobiles. Thus, she could fall afoul of Majority Leader Mitch McConnell’s threat to veto any “radical progressives” Biden might name to the Cabinet.
Congress, by all accounts, is a dead end. If President Biden wants anything done on climate change, he’ll have to do it himself. Which is just what he intends to do. The incoming administration envisions a host of executive actions to combat climate change, from the modest to the major. One of its first steps will be rejoining the Paris climate agreement, which the U.S. formally left the day after November’s election.
According to the Washington Post, “Biden is poised to embed action on climate change across the breadth of the federal government.” Even departments not traditionally associated with such issues, such as the Treasury and Pentagon, will be drafted into the endeavor. “The far-reaching strategy is aimed at making significant cuts in greenhouse gas emissions even without congressional action, by maximizing executive authority.”
Among the actions being contemplated are implementing stringent new fuel economy standards for cars, requiring that corporations disclose the risks they face from climate change to shareholders, banning fossil fuel extraction on federal land, closing the Arctic National Wildlife Refuge to oil drilling, and using the federal government’s procurement authority to hasten the adoption of electric vehicles. The new administration will also mandate that all federal agencies incorporate climate change into their policymaking procedures.
Where Biden is most likely to maximize his authority, however, is in minimizing the accomplishments of his predecessor. Trump rewrote or reversed more than a hundred environmental regulations. Biden’s transition team has already begun drafting executive orders to revoke Trump’s policies. Trump abolished Obama’s Clean Power Plan and “waters of the U.S.” pollution rule via executive fiat. Biden could restore them the same way.
That, though, is easier said than done. What one president does, another can undo. Just as Biden aspires to overturn Trump’s policies, Biden’s successor can overturn his. Legislation, difficult as it is to enact, has the advantage of semipermanence; it can’t be erased by the next guy with a pen and a phone.
The regulatory process, moreover, is arduous, complicated, and prolonged. Trump issued the executive order dismantling the Clean Power Plan in 2017, but it was only taken off the books in 2019 when a replacement rule was finalized. Biden can begin the process of unwinding Trump’s rules as soon as he takes office, but it could be years before they’re actually abolished due to the necessity of crafting alternatives. Given how many rules and orders Trump implemented (and his administration is preparing to promulgate several new ones before it departs, including two that would make it harder to create new environmental rules), the effort to get rid of them may itself consume most of Biden’s term.
So will the effort, once Biden’s own rules are published, to defend them in court. For that is where, just like Trump’s, they are destined to wind up. And thanks to Trump’s vaunted “reshaping” of the judiciary, that is where Biden’s climate agenda will confront its most formidable obstacle.
It’s an exaggeration to claim, as the New Republic’s Kate Aronoff did, that the current Supreme Court was “designed to kill climate policies.” Yet it’s hardly receptive to them. In 2016, it blocked the Clean Power Plan from going into effect. In 2018, it effectively ordered the 9th Circuit to kill the so-called kids’ climate case, in which a group of children sued the federal government on the grounds that its failure to fight global warming violated their constitutional rights. Both occurred when the court had a 5-4 conservative majority. With Amy Coney Barrett’s appointment, it is now 6-3. Her addition means it is likely to be even less hospitable to environmental litigation.
The justices could thwart Biden and climate groups in several ways. They could narrow standing requirements, thereby making it harder for such groups to bring suits in the first place. The court may not overturn its 2007 decision upholding the EPA’s power to regulate greenhouse gases, but it could significantly narrow its scope. The Supreme Court could also rule that EPA actions exceed its statutory authority. The prospect that it may overturn the legal principle known as “Chevron deference,” named after the decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which affords federal agencies wide latitude in implementing laws, alarms environmentalists. Should the justices do any of these things, they could drastically circumscribe Biden’s ability to implement his climate change program.
Few of his policies will make it to 1 First St. NE. The fate of most will be decided by the lower courts, and these have tilted much more to the right in the last four years. Blue-state attorneys general ran to friendly district court judges to secure national injunctions blocking Trump’s policies. Starting in January, their red-state counterparts (and outside organizations challenging Biden’s policies) will begin returning the favor.
If they succeed, they may have conservative bête noire Chief Justice John Roberts to thank. In his opinion this past June overturning Trump’s attempt to reverse Obama’s Deferred Action for Childhood Arrivals program, Roberts ruled that the Department of Homeland Security failed to take sufficient account of the reliance interests of those covered by DACA. That is, DACA recipients had come to depend on the benefits it conferred, and the administration could not arbitrarily terminate them.
Imagine, then, that the Biden administration revokes permits Trump’s granted for oil and gas pipelines. Obama canceled the Dakota Access Pipeline. Trump resurrected it shortly after taking office; it has been operating since. Should Biden attempt to shut it down, as activists are urging him to do, a court could prevent him from doing so on the grounds that its owners have a reliance interest in its continued operation.
Roberts may well have intended his reasoning in the DACA case to be good for one use only. Lower courts, though, are under no obligation to treat it that way. Witness how several appeals courts have utilized Roberts’s solo concurrence in this spring’s June Medical abortion case to uphold abortion restrictions by arguing that his opinion is now the controlling (and more lenient) standard by which to judge such restrictions. Until and unless Roberts advises the lower courts that they are misinterpreting him, they could use his logic to put a large dent in Biden’s environmental plans.
A Congress that, at best, will have the barest Democratic majorities, a regulatory process that will make it as laborious for his administration to institute its own policies as it will be to repeal Trump’s, and a federal judiciary that at every level is more conservative and therefore likely more skeptical of environmental rules and regulations — all three will pose major, if not insurmountable, obstacles to the Biden climate change agenda.
Joe Biden and climate activists alike may envision him as the first “climate president.” But given the hurdles he faces, his actual achievements are likely to fall far short of either his or their most ardent hopes.
Varad Mehta (@varadmehta) is a writer and historian. He lives in the Philadelphia area.
