President Joseph Biden Jr. emphatically stated climate change is the “number one issue facing humanity” during his campaign and vowed to shepherd the United States through the tough changes to transition the nation away from fossil fuel use to clean energy sources during his presidency.
Biden has been stalled and hampered at almost every turn from making progress toward achieving his goals. The U.S. Supreme Court (SCOTUS) dealt the latest blow to this agenda when it limited the EPA’s ability to regulate carbon emissions.
Obstacles
On Biden’s first day in office, he issued an Executive Order (EO) to halt new oil and gas leases on federal land to give his office time to review the program. That step was foiled when U.S. District Judge Terry Daughtry (Louisiana) found the EO was illegal and ordered leasing to be restarted.
Another big hurdle is that the necessary regulations to achieve his goals are stalled in the legislative process.
A $3.5 trillion infrastructure bill, paired with climate provisions, passed the House but was stalled in the evenly divided Senate when Senator Joe Manchin III (D- WV) opposed it. This opposition, paired with no Republican support, resulted in the bill never being heard by the Senate.
Manchin renewed his push to delay broad environmental legislation following the SCOTUS decision. However, “[s]ome members of Congress remain optimistic that a climate bill can be passed. Manchin has indicated an openness to supporting the clean energy tax credits in the Biden plan, but also has said that negotiations on the so-called Build Back Better plan must start from scratch,” reported the Kansas Reflector.
The Ukrainian War and soaring energy and fuel prices have also hindered Biden’s plans. In the president’s March 2022 State of the Union Address, Biden said his top priority “is getting prices under control.” In the speech, he also called upon more oil production from domestic producers and announced that the United States “has worked with 30 other countries to release 60 million barrels of oil from reserves around the world. America will lead that effort, releasing 30 million barrels from our own Strategic Petroleum Reserve. And we stand ready to do more, if necessary, unified with our allies.”
Biden’s mixed messaging
Biden finds himself in a political quagmire. Members of his own party are calling for some action on the president’s part to lower inflation and energy and fuel prices, while environmental and climate advocates are frustrated with his lack of progress. And anything he does to slow rising energy/fuel prices alienates his clean energy supporters.
Biden’s approval rating plummeted to a new low of only 39% in the last few weeks, reports Bloomberg.
On June 22, 2022, Biden called upon Congress to suspend the federal gas tax. The week before, he sent a letter to the nation’s largest refiners, including Exxon Mobil Corp., BP, and Shell, in which he berated them for taking advantage of the situation, reports NPR. “At a time of war, refinery profit margins well above normal being passed directly onto American families are not acceptable. … My administration is prepared to use all reasonable and appropriate federal government tools and emergency authorities to increase refinery capacity and output in the near term, and to ensure that every region of this country is appropriately supplied,” Biden said, according to the NPR article, which also noted Biden has already invoked his emergency powers.
Cutting and/or stabilizing gas prices would seem to be at odds with Biden’s agenda to transition to clean energy. In fact, skyrocketing gas prices seem to be an aide in pushing the American public to move away from fossil fuels.
“[When] it comes to the gas prices, we’re going through an incredible transition that is taking place that, God willing, when it’s over, we’ll be stronger and the world will be stronger and less reliant on fossil fuels,” Biden said, reports Forbes.
“It was a mistake since, although running prices for fossil fuel-generated energy higher has always been part of the plan for Biden’s Green New Deal energy policies, admitting it aloud in public was not supposed to be part of the messaging,” Forbes continues. “The President’s latest gaffe comes as his polling numbers continue to plumb previously unseen depths as they proceed in their inverse relationship to the ever-rising price for gasoline at the pump.”
Biden was quick to assert that his policies have not worsened the spike in fuel prices.
However, an upcoming regulation from the Securities and Exchange Commission (SEC) related to environmental, social, and governance (ESG) disclosures will restrict access to capital markets for energy companies, while permits for pipelines and new liquefied natural gas (LNG) export facilities are stalled, and federal lease sales have been canceled. These actions contribute to rising fuel/energy prices and uncertainty for the energy industry, which is at odds with Biden’s assertation.
EPA powers after SCOTUS decision
The SCOTUS decision in West Virginia v. EPA ruled that Congress, not the EPA, has the authority to create cap-and-trade regulations systems to limit greenhouse gas (GHG) emissions from existing sources and transition away from fossil fuel energy to clean energy. The ruling limits the EPA to regulating emissions at individual plants rather than having the ability to mandate industrywide shifts toward cleaner power—known as “generation shifting.”
However, even though the Obama administration’s Clean Power Plan (CPP) was never truly implemented, most states followed the mandates it sought to enforce, meaning GHG emissions were reduced. Individual states still maintain a great deal of implementation flexibility and could still choose to utilize the strategy of generation shifting to control emissions.
Additionally, the energy industry has already retired many fossil fuel-powered energy generating units (EGUs) and placed more in line to be retired as the industry takes advantage of less expensive fuel alternatives.
The lengthy lead time on the pending SCOTUS decision gave the Agency ample time to prepare for this possibility.
“EPA Administrator Michael Regan told a Senate committee in April that the agency would have a new standard to limit carbon emissions ‘ready to go as soon as the Supreme Court rules’ on its authority to regulate in that space. He had earlier promised a set of tools to deal with emissions from power plants,” says Bloomberg Law.
The EPA still retains its regulatory powers to reduce emissions inside the fence line at individual power plants, both existing and new. The Agency will likely look at available technologies such as carbon capture, co-firing options using biomass or natural gas, and efficiency improvements to determine what levels of emissions are possible utilizing available technology. Once these options are evaluated, the Agency will determine the “best system of emission reduction” and use this to set maximum emissions rates at individual power plants.
The EPA “may, for example, still be able to require some fuel-switching from coal to gas, and to allow a trading system after imposing standards based on inside-the-fence reductions. But … innovation is likely to be met with skepticism by [SCOTUS]. EPA probably should focus on aggressive but traditional regulation (like, for example, stringent particulate-matter and ozone standards), rather than innovative and flexible programs like the [CPP]. That’s bad for climate, but also for industry and the economy, as those programs likely will be more expensive than flexible alternatives,” said Nathan Richardson, a University Fellow at the University of South Carolina and a researcher at Resources for the Future, according to Resources.
The EPA is also on track to finalize the carbon pollution rule for new power plants, of which 200 are currently proposed nationwide.
Earthjustice suggests the Agency focus on strengthening existing pollutant regulations, including:
- The Mercury and Air Toxics Standard (MATS) rule limiting mercury, arsenic, and other toxic compounds from coal plants;
- The National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM-2.5);
- The NAAQS for ozone;
- The Good Neighbor rule reducing nitrogen oxide and smog emissions crossing state borders;
- The Coal Ash rule governing the disposal of toxic coal ash from coal-fired power plants;
- The Regional Haze rule requiring states and the federal government to work together to improve visibility in national parks and wilderness areas;
- The Startup, Shutdown, and Malfunction rule to limit excess pollution during startup, shutdown, and malfunctions; and
- Effluent Limitation Guidelines limiting water pollution from power plants and wastewater treatment plants into surface waters.
Executive powers
Clean energy advocates are calling for Biden to declare a “national climate emergency and reinstate a ban on crude oil exports” in light of the SCOTUS decision, AP News says. Declaring this emergency would give Biden the power to place this moratorium on the oil exports.
Senator Sheldon Whitehouse (D-RI) “suggested a series of actions Biden could take, including ‘a robust social cost of carbon rule’ that would force energy producers to account for greenhouse gas emissions as a cost of doing business. The senator also urged Biden to require major polluters to use technology to capture carbon dioxide emissions and impose stronger pollution controls on cars, light trucks and heavy-duty vehicles,” AP News adds.
Biden’s executive powers also include the Defense Production Act (DPA), which can be used to issue loans to manufacturers to ramp up U.S. production of heat pumps, fuel cells, solar panels, insulation, and other materials and equipment that will aid in lessening emissions in energy production. In June, Biden announced he was taking this step. He has already utilized this act to boost mining production for minerals necessary to produce electric vehicles.
“The Biden administration’s expansive use of emergency authorities under the DPA is less about strengthening national security and more about subsidizing an anti-American energy resource agenda,” Representative Cathy McMorris Rodgers (R-Wash.) said, according to The Washington Post. “Still, the White House hopes invoking the law sends a clear signal to investors at home and allies abroad. ‘His use of the [DPA] to accelerate all this domestic production is really, I think, going to be one of the ways in which this president makes it clear to people that he is going to keep driving the change that’s necessary,” McCarthy continued.
However, even with all the executive powers at his disposal, Biden’s vow to cut U.S. emissions in half by 2030 is virtually impossible without major legislative action. Legislative relief does not currently seem possible, considering the political divide and Manchin’s continued opposition.