Why Biden’s climate push might not be doomed

Still, President Joe Biden has indicated he plans to try.

“I have asked my legal team to work with the Justice Department and relevant agencies to carefully review this decision and find ways in which we can, under federal law, continue to protect Americans from pollution. harmful, including pollution that causes climate change, » he said. in a statement after the decision.

Here are some of the steps Biden and his allies can still try to take:

Make a deal with Manchin

Democrats have tried that before, of course, only to see Sen. Joe Manchin (DW.Va.) crush their hopes of signing into law their $1.7 trillion climate, health and social spending bill l ‘last year. And efforts to negotiate a more modest climate-focused package since then have failed to yield a deal.

Any victory on this front will always require the Democrats to find the 50 senators – plus Vice President Kamala Harris — they must pass a bill without any Republican support, using a process known as reconciliation. The Build Back Better proposal they pushed last year would have included incentives for utilities to turn to clean energy; put a price on emissions of the powerful greenhouse gas methane from oil and gas production; and provided hundreds of billions of dollars for clean energy and electric vehicle tax incentives.

But that package also included measures such as an expanded child tax credit and other social spending that Manchin blocked, opposing the high price tag.. He also forced Democrats to scrap proposals to punish power companies that don’t shift away from fossil fuels quickly enough. And while Democrats are optimistic about the possibility of negotiating a methane tax that Manchin can support, it would be more modest than originally expected.

The Supreme Court’s decision could help spur Democrats to strike a deal.

« I don’t know if anyone would give him more than a 50-50 chance of succeeding, but at least there’s a chance they think Manchin will be okay with it, » said John Podesta, chairman of the board. administration of the Center for American Progress, which led the Obama administration’s climate strategy.

A reality check: Even if the talks succeed, environmentalists have always argued that the investments proposed in the bill would be only a first step that falls far short of the action needed to tackle climate change.

Still, green groups were quick to call for congressional action after Thursday’s court ruling.

« Reforms are needed now more than ever, » said Carol Browner, former EPA administrator and chair of the League of Conservation Voters’ board of directors. Earthjustice and Evergreen have also issued calls to adopt the reconciliation package.

Ask Congress to update the Clean Air Act

The Supreme Court’s decision was clear: If Congress wants the EPA to have the power to reduce greenhouse gas emissions, it should make that clear with a new law.

This sort of thing has happened before. In 2000, the High Court struck down the Food and Drug Administration’s ability to regulate most tobacco products. Nine years later, Congress passed legislation giving the FDA that authority.

But climate pollution is different from tobacco, and Congress today is more polarized than it was in 2009. Even with the advantage of a supermajority in the Senate, Democrats tried and failed to pass a bill cap and trade in 2010, and since then major climate legislation has remained effectively out of reach.

Among the hurdles: finding GOP lawmakers who think the EPA needs more authority.

Senator Shelley Moore Capito of West Virginia, the Republican lead on the Environment and Public Works Committee, noted that the agency still has the power to address climate pollution from power plants, albeit in a much more modest way than in the Obama administration’s rule that judges rejected on Thursday. It could snuff out any hope of Democrats winning over moderate Republicans to improve the Clean Air Act.

“There is always authority there, but it has to be within the framework of the [power plant’s] fence line. It has to be in a reasonable scale,” she said in an interview. « We’ll see what the Biden administration comes up with, but that’s where oversight and transparency are extremely important. »

A few Democrats indicated Thursday that they favored legislative action.

« We need to pass legislation clarifying the EPA’s authority to regulate emissions, » said Rep. Pramila Jayapal (D-Wash.), chairman of the Congressional Progressive Caucus.

But unlike a budget reconciliation measure, Democrats could not pass this kind of bill with just 51 votes. They would need at least 60 votes to overcome a likely Republican filibuster. And they won’t have that anytime soon, barring a monumental blue wave in November that would give Democrats a supermajority — instead, all polls indicate Republicans are likely to take control of at least one chamber of Congress.

Use the tools the Supreme Court left untouched

The judges did not completely prohibit the EPA from regulating greenhouse gases – and in fact, Chief Justice John Roberts explicitly noted that they were not deciding the precise limits of EPA authority.

This means the EPA can try to write a rule that would be less sweeping than the Obama administration’s expansive attempt to move power plants to cleaner energy, but would be stricter than a regulation of the era. Trump who experts say actually increased carbon emissions. But the Biden administration must figure out how to walk to the legal line without crossing it, and the court has offered little guidance on how to do so.

« Two things are true simultaneously, » said National Wildlife Federation CEO Collin O’Mara. « [The court] did not eliminate the power to regulate greenhouse gas emissions, and they reduced it to the point where it would be incredibly difficult to reach 50% [emissions reductions] by 2030 or a net zero future with the tools they left behind.

The court recognized that the EPA could still regulate carbon pollution « by setting emission limits imposed directly on power plants, which could be based on fuel switching, efficiency improvements, or other technologies », said Eric Schaeffer, executive director of the Environmental Integrity Project.

One option could be to require coal-fired power plants to change their fuel mixes to burn more natural gas or biomass alongside coal, a process known as « co-firing ». Because these fuels produce fewer emissions than coal, this would reduce pollution at the source.

However, Thursday’s majority opinion pushed back against the idea that the EPA could simply require all coal-fired power plants to switch completely to natural gas.

« The EPA has never remotely ordered anything like this, and we doubt it is, » Roberts wrote. The section of the Clean Air Act on which Obama’s rule relied « authorizes the EPA to guide states in » establishing[ing] performance standards” for “existing source[s],’ … not to order existing sources to effectively cease to exist.

Separately, EPA Administrator Michael Regan has previously suggested requiring coal-fired power plants to install renewable energy sources such as wind or solar onsite, as most power plants have many surrounding empty lots. Electricity from these sources could help offset the energy needed to operate the power plant, although no such approach has ever been proposed before.

Regan issued a statement Thursday pledging « ambitious » climate action.

“EPA will move forward with establishing and legally implementing environmental standards that meet our obligation to protect all people and communities from environmental harm,” he said.

But if Regan got too ambitious, Roberts left him a warning shot, calling it « relevant » that all previous regulations developed under this part of the Clean Air Act were limited to reducing emissions at the source.

The message: EPA is on a leash.

Back to states

With Republicans likely to support at least one house of Congress this year, conservationists are already gearing up to look to states for climate victories. The Supreme Court decision likely accelerated those efforts.

While pressure from activists will remain on the EPA to enact the strictest rules possible, Roberts’ opinion has raised uncertainty about the scope of federal greenhouse gas regulations. This puts the responsibility for the climate on the States which want to green their economies – and grassroots efforts will focus on pressuring those stronger states.

« I wouldn’t diminish the ability of great states like California and New York and several others to be the tail wagging dog on national climate policy, » Representative Jared Huffman (D-California) said in an interview.

Some of these States are preparing to respond to this call.

The court’s decision « puts the onus back on New York City, » said Basil Seggos, the State Department’s Environmental Conservation Commissioner, adding that « we are proud to have some of the most aggressive laws in the nation on climate, energy and the environment…. It will have relatively little impact on these laws.

But countless Trump-era analyzes have demonstrated that an all-blue coalition cannot put the United States on a greenhouse gas reduction path fast enough to avoid storms, increasingly severe droughts and forest fires. That means environmental groups will also be organizing activists across the Democratic base to push purple states like North Carolina and Georgia into further action.

Organizers will also seek to score tactical victories such as shutting down fossil fuel plants and other infrastructure in states that emit huge greenhouse gas emissions, such as Texas and Louisiana, even as the State leaders are opposed to climate action. They will also aim to help Midwestern Democratic governors in states like Michigan and Wisconsin get the most out of last year’s $1.2 trillion infrastructure law spending, which included provisions on the climate.

Marie French contributed to this report.