Climate change activists and experts are calling on the Biden administration to swiftly deploy a series of executive actions to speed up the transition away from fossil fuels now that Republicans are set to retake control of the House of Representatives, effectively blocking new climate legislation from being passed.
Through its regulatory authority under laws such as the Clean Air Act, the executive branch has considerable leeway to affect U.S. energy policy, but some critics say the administration has been too slow to roll out new pollution regulations concerning the burning of fossil fuels. They warn that if the Biden administration doesn’t pick up the pace right away, too few rules will be finalized before the end of the president’s term in office.
If the next president is a Republican, rules that haven't been finalized are likely to be withdrawn, as President Donald Trump did with limits on carbon dioxide pollution from power plants that were proposed under his predecessor, President Barack Obama. And the Congressional Review Act gives Congress up to six months after a rule has been finalized to overturn it, meaning that if Republicans win control of the Senate and the White House in 2024, they could reverse rules put in place at the end of Biden's term, just as they did to 14 Obama-era environmental regulations in 2017.
"Our work is not done," said Leah Stokes, an environmental policy expert at the University of California, Santa Barbara, during a post-election panel in November hosted by the climate change advocacy group Evergreen Action.
“Climate change does not get solved by passing one law,” Stokes added, in reference to the Inflation Reduction Act, which will distribute $369 billion in subsidies for clean energy and electric vehicles over 10 years. “We have to focus on making sure that President Biden delivers on his campaign promises and acts with strong executive action in all areas. The Biden administration has been doing a really good job in some ways, but they've been holding back on executive action.”
When Biden assumed office, the White House initiated what it called a "whole-of-government approach to the climate crisis," directing a wide range of agencies to make every relevant decision with any eye towards reaching the U.S.'s stated goal of reducing greenhouse gas emissions by 50% from 2005 levels by 2030. The Inflation Reduction Act is projected to get emissions down by about 40% by the end of the decade, leaving it to the Biden administration to figure out how to get the rest of the way there.
The administration has delivered some major new executive actions on climate change. Upon taking office, Biden rejoined the Paris Climate Agreement and named former Secretary of State John Kerry as special presidential envoy for climate change. The U.S. has subsequently led a new round of climate diplomacy, including announcing new efforts to fight climate change with other major emitters like China. The Department of Interior has ramped up leasing federal land and waters for wind and solar energy production. On Dec. 6, the Bureau of Ocean Energy Management will hold the first-ever offshore wind energy lease sale on the West Coast. In 2021, the Environmental Protection Agency (EPA) proposed new regulations of methane, a potent greenhouse gas released from oil and gas wells and pipelines, and then it released an updated, more ambitious and comprehensive version of the proposal this November.
Biden has worked on measures designed to help the country adapt to climate change, such as creating an interagency plan to deal with extreme heat waves, which includes measures such as the Department of Labor planning to write regulations limiting extreme heat exposure for outdoor workers and the Department of Health and Human Services making Low Income Home Energy Assistance Program funds available for air conditioning.
But the administration hasn't been as active when it comes to writing new regulations on pollution from fossil fuels. Evergreen Action released a report card in October that found the EPA is "falling behind" its own deadlines on regulating pollution from power plants. Of the 10 possible regulations it examined — including rules limiting carbon dioxide emissions, updated mercury and air toxics standards and tighter limits on smog, soot and coal ash — Evergreen found that eight had either been delayed or no action had been taken at all.
“EPA must move further and faster,” Evergreen Action executive director Jamal Raad told Yahoo News.
Collectively, these regulations would increase the cost of operating coal-fired power plants, which activists say could hasten energy utilities’ transition to cleaner alternatives such as wind and solar power. But in order for new regulations to take effect before Biden leaves office, they must be announced soon.
“They are risking that eventuality by not moving faster on their authority under the Clean Air Act to rein in pollution in the power sector,” Raad said.
Aside from the timing, it remains to be seen how much new or updated rules will require coal plants to reduce their pollution, since the government has to weigh the public health benefits of stricter rules against the cost of compliance. Representatives of the fossil fuel industry argue that increasing the cost of operating coal-fired power plants could threaten the reliability of the electricity grid by causing coal plants to shut down before they are replaced by alternative sources of energy.
Electric utilities are already moving away from coal, but some of the cleaner alternatives like wind and solar cannot generate power at all times of day in the way that burning coal can. America's Power, a coal industry trade group, argues that the federal government is underestimating already-planned coal plant retirements. According to America's Power, a coal industry trade association, almost half of U.S. electricity generation capacity from coal is already due to go offline by 2030.
Michelle Bloodworth, America’s Power’s CEO, told Yahoo News that the company and utility companies are lobbying the EPA to make the rules less stringent and more flexible.
“We’re not saying that EPA doesn’t have authority to promulgate these rules and revise these rules,” Bloodworth said. “We do think EPA has a lot of discretion to ensure that they don’t cause additional coal retirements.”
In June, the EPA was brushed back by the Supreme Court on power plant regulation when the court's conservative majority ruled in West Virginia v. EPA that the Obama administration's approach to regulating carbon emissions from power plants went beyond the agency's legal authority.
"All of these [potential rules] should be understood as a body of regulation to get at greenhouse gas emissions, as climate change regulation," said Katie Tubb, a research fellow in the Center for Energy, Climate, and Environment at the conservative Heritage Foundation. "I think EPA is increasingly setting economic policy and certainly energy policy, and I think there are some real constitutional concerns with that. Certainly West Virginia v. EPA was a taste of those constitutional concerns. But I think there's also pretty big reliability concerns when it comes to maintaining a viable electricity grid."
Asked by Yahoo News about the timeline for enacting new carbon dioxide regulations, the EPA noted it already has implemented several, including auto emissions standards and a rule requiring industry to phase out the use of hydrofluorocarbons (HFCs), a potent greenhouse gas used in air conditioning and refrigeration. The agency pledged to continue to roll out new rules, but did not offer any information on the timing.
“President Biden promised bold action to combat the climate crisis… EPA is delivering on this commitment, having finalized strong rules to phase down super-pollutant HFCs, and to establish the strongest ever light-duty vehicle emissions standards in U.S. history,” a spokesperson for the EPA wrote in an email. “We will continue to move aggressively to advance ambitious proposals that protect people and the planet… We are working expeditiously to craft rules in a way that follows the best available science, follows the law and will stand the test of time.”
The White House did not respond to requests for comment.
Environmental activists and lobbyists have expressed cautious optimism that the administration will pick up the pace when it comes to announcing new climate regulations. "I'm hoping we see quite a bit from the Biden administration on administrative rules that have been slowly progressing," Melinda Pierce, the Sierra Club's legislative director, told the Hill on Monday. "I think we're going to see a whole bunch come to fruition at the end of this year and certainly next year."
Activists say that the Biden administration would defend its regulatory record by noting that the first two years of the president's tenure have been marked by undoing the policies adopted under Trump, who opposed action to address climate change. In July, the Washington Post reported that since Biden took office, he has overturned 82 Trump-era environmental policies, including strengthening fuel efficiency and greenhouse gas emission vehicle standards that were weakened by Trump and resuming payments to the Green Climate Fund, which helps developing nations deal with climate change.
EPA Administrator Michael Regan has said that the agency is short-staffed, limiting its capacity. But that's about to change.
“For the vast majority of the time they’ve been operating under Trump budgets and did not have the staffing necessary to put forward [more new] rules,” Raad said. “Luckily, the Inflation Reduction Act includes money for them to implement these rules and allows them to hire more staff.”
Even so, experts caution that the regulatory process has to play out deliberately, because every new rule is liable to face a lawsuit arguing that the administration did not check all the boxes required by law.
“I think it’s going to be difficult for them to speed up the process, because the regulatory process is very challenging to speed up,” said Frank Maisano, a partner in the policy resolution group at Bracewell, a law and lobbying firm that represents energy companies. “If you don’t follow the benchmarks of the administrative procedure, you basically open yourself up to a challenge, which there certainly will be.”
Some experts contend, however, that the administration could also restrict pollution from fossil fuels simply through more vigorous enforcement of existing laws and regulations. In September, the Revolving Door Project, a division of the left-leaning Center for Economic and Policy Research, put out a report exploring how an array of agencies, including EPA, the Department of Justice, the Department of Agriculture and others, could crack down on widespread violation of existing environmental laws.
“There are limits to the amount of polluting air particulates can emit,” Max Moran, lead author of the report, told Yahoo News. “Many, many power plants are just not in compliance with this and emit far more particulates… If EPA can find examples of this, they can bring cases, they can get the [Department of Justice] to sue, they can demand fines and they can demand, more importantly, behavioral shifts.”
Similarly, a recent report from the environmental litigation nonprofit Earthjustice found widespread ongoing violations of federal coal ash regulations, with 91% of coal plants having ash landfills or waste ponds leaking arsenic, lead, mercury, selenium, and other metals into groundwater at dangerous levels.
Then there’s the always-contentious question of whether the federal government should be selling new leases for oil and gas drilling on federal land and waters. Biden pledged in his 2020 campaign to end the practice, but he has been forced to restart it by a federal court ruling, and — to win the crucial support of Sen. Joe Manchin, D-W.Va. — the Inflation Reduction Act also mandated a certain amount of new leasing moving forward.
Nonetheless, climate activists say that there are a number of reforms and restrictions the Department of Interior could make to the program.
“More is needed for the oil and gas leasing program to mirror our commitments to slash greenhouse-gas emissions,” Michael Freeman, a staff attorney at Earthjustice, wrote in an email to Yahoo News. “We are urging BLM to use its authority under the law to limit future leasing and drilling decisions so that lease sales are held or drilling approved only when it is consistent with U.S. domestic climate commitments, like the goal to reduce emissions 50% by 2030.”
In practice, that means restricting or banning drilling in certain areas, either because they are ecologically sensitive or because the more energy-intensive methods of extraction needed there would have higher carbon footprints. “There are many places throughout the West and in Alaska where high wildlife habitat and other values justify taking these areas off the table for new leasing, especially given the threat to those values posed by ongoing climate change impacts,” Freeman said. “The Secretary of Interior has authority to withdraw such areas with important values from leasing under the Federal Lands Policy and Management Act and other laws, and we are working with others to identify priority places for such action now.”
The oil and gas industry and their Republican allies in Congress will also continue to pressure Biden, arguing that — especially at a time of high oil and gas prices — supply should be expanded.
“Meeting the growing demand for energy while confronting the challenge of climate change will require a combination of policies, industry initiatives and continuous innovation,” said a spokesperson for the American Petroleum Industry, an oil and gas trade group, in an email. “API supports smart regulations that build on the progress we’ve made on emissions reductions and bolster our energy security. We will continue to work with administration officials and the new Congress in support of policies that advance energy infrastructure buildout, develop needed U.S. natural gas and oil, and accelerate innovations to make, move and improve the energy we use everyday.”
The Department of Interior was not immediately available to comment.
Similar to Biden’s “whole-of-government” approach to address rising global temperatures, environmental activists argue that the climate crisis requires every facet of government to be oriented toward reducing emissions.
“Part of this is also just getting people to think in a different way about their legal authorities and to think in a different way about their particular remits,” Moran said. “If you’re trying to think through a whole-of-government climate strategy, you often get people who say, ‘well, if it doesn’t have the word environment in its name, it isn’t a climate agency, it shouldn’t be thinking about climate.’ And I just think that’s a very blinkered, very narrow understanding of what climate change is. It’s a whole-of-society issue and it requires a whole-of-government response.”