Neither the latest congressional failure to pass climate legislation nor the Supreme Court’s terrible decision in West Virginia v. EPA prevents President Biden from taking bold action on climate change. The legislative and judicial branches of the federal government have handed him the baton. The question is whether he will run with it.
The Supreme Court decision is awful because it will restrict federal agencies that plan to take broad regulatory action. But the court’s decision doesn’t limit the authority of the Environmental Protection Agency — or any other agency — to issue new regulations or to use existing regulations to take action regarding permitting or enforcement. The court actually leaves open the principal strategy that many climate advocates have steadfastly been pursuing with great success — using existing regulations to fight oil, gas, petrochemical, and coal projects.
Climate advocates will continue to fight permits for new fossil fuel infrastructure to prevent both emission of greenhouse gases and pollution that endangers local residents. In fact, by making it more difficult for the EPA to promulgate innovative regulations, the court’s decision underlines the importance of a strategy that has already stopped projects that involve many billions of dollars of capital investment. These include, most famously, the cancellation of the Keystone XL Pipeline, but they also include cancellation of the Atlantic Coast and PennEast pipelines. In both of those cases, the developers abandoned the projects shortly after winning cases at the Supreme Court.
This is a detailed and demanding strategy led by frontline organizations fighting for climate sanity all over the country. Fueled by skyrocketing profits, gas companies have proposed an alarming 21 liquefied natural gas export facilities, 19 of which are along the Gulf Coast. This massive expansion of export capacity would increase US gas production by at least 40 percent, dramatically undermining global efforts to reduce greenhouse gas pollution. Activists from Louisiana have called on Biden to slow the proliferation of these poisonous, dangerous terminals.
Climate advocates are doubling down on this permit-by-permit strategy and the Biden administration can deploy two invaluable tools to aid their efforts. In addition, reports that he may declare a climate emergency are encouraging, but the devil is in the details.
One, the administration can deny the issuance of permits for every gas export facility, every new oil or gas pipeline, every petrochemical facility, every gas-fired power plant. And when state agencies issue federal permits for new fossil fuel projects, those agencies must be overruled on a consistent basis by the EPA.
The Biden administration’s discretion over the issuance of permits was apparent in news reports that approval of the Mountain Valley pipeline was offered to Democratic US Senator Joe Manchin of West Virginia to induce him to support congressional action on climate change. Biden now needs to pursue a whole-of-government strategy to limit greenhouse gas emissions. That means every agency — EPA, the Army Corps of Engineers, the Federal Energy Regulatory Commission, the Department of Interior, and many others — needs to be enlisted to play leadership roles in this fight.
Biden must also make a much greater commitment to aggressively enforce environmental laws against polluters that violate regulations regarding releases of conventional pollutants, rather than caving in to industry lobbying for weak enforcement. If existing pollution requirements were more strongly enforced in places where the oil and gas industry dominates, like the infamous “Cancer Alley” and the Houston ship channel, it would end the industry’s free rein on polluting communities of color and greatly reduce potent greenhouse gases.
Biden’s climate credibility will now be judged both by domestic advocates and on the world stage by whether his administration refrains from issuing permits for new fossil fuel projects and strongly enforces existing regulations to limit pollution.
Only the president can make federal agencies work in tandem to address climate change. Manchin took away one tool for addressing climate change, and the Supreme Court took away another, but the tools that remain available to the most powerful person in the world can be very effective in reining in one of the most powerful industries in the world. Biden must use every tool available to him.
Larry Shapiro is associate director for program development of the Rockefeller Family Fund.