Court Decision Leaves Biden With Few Tools to Combat Climate Change

Source: By Coral Davenport, New York Times • Posted: Thursday, June 30, 2022

President Biden met with governors, labor leaders, and private companies last week to discuss a federal and state partnership to develop more offshore wind energy.
Kenny Holston for The New York Times

WASHINGTON — One by one, the tools available to President Biden to fight climate change are being stripped away.

After a Supreme Court decision on Thursday, the Environmental Protection Agency will have less authority to limit carbon dioxide from power plants, a major source in this country of the pollution that is dangerously heating the planet.

It’s one in a series of setbacks for Mr. Biden, who came into office with the most ambitious climate agenda of any president, pledging to the rest of the world that the United States, the world’s largest historic emitter of greenhouse gases, would cut that pollution in half by the end of the decade.

In a statement, Mr. Biden called the ruling “another devastating decision that aims to take our country backwards” and said the conservative majority on the court was siding “with special interests that have waged a long-term campaign to strip away our right to breathe clean air.”

“The science confirms what we all see with our own eyes — the wildfires, droughts, extreme heat, and intense storms are endangering our lives and livelihoods,” Mr. Biden said. “I will take action. My administration will continue using lawful executive authority, including the EPA’s legally-upheld authorities, to keep our air clean, protect public health, and tackle the climate crisis.”

Some experts say that after the Supreme Court’s decision in the case, West Virginia v. E.P.A., it will soon be mathematically impossible for Mr. Biden to meet his goals.

“At this point I don’t see any way to hit the kind of targets they laid out,” said David G. Victor, an expert in climate policy at the University of California, San Diego.

The consequences could be severe. Scientists say the United States must hit Mr. Biden’s target if it is to do its part to limit average global warming to 1.5 degrees Celsius, or 2.7 degrees Fahrenheit, compared with temperatures before the Industrial Revolution. That is the threshold beyond which the likelihood significantly increases of catastrophic impacts such as deadly heat waves, drought, wildfire and storms. The planet has already warmed an average of about 1.1 degrees Celsius.

But Mr. Biden has faced obstacle after obstacle in his push for climate action, ranging from conflicts within his own party to a worldwide energy crunch triggered by the war in Ukraine to well-funded legal challenges from Republicans and the fossil fuel industry.

Patrick Morrisey, the Republican attorney general of West Virginia and the lead plaintiff in the case, called the decision a “great win for West Virginia and her residents,” adding, “We are pleased this case returned the power to decide one of the major environmental issues of the day to the right place to decide it: the U.S. Congress, comprised of those elected by the people to serve the people.”

The problem for Mr. Biden is that Congress has so far failed to act on climate change. The centerpiece of the president’s climate plan, legislation to replace coal and gas-fired power plants with wind, solar and nuclear energy, was deleted from a major domestic policy bill last fall after objections from Senator Joe Manchin II, Democrat of West Virginia. Mr. Manchin, who has personal financial ties to the coal industry, has been able to single-handedly set the limits of Mr. Biden’s legislative ambitions as the key swing vote in an evenly divided Senate.

The domestic policy bill in limbo on Capitol Hill still includes what would be a historic increase in tax credits to spur the wind and solar industries. But it is unclear if Mr. Manchin will support the plan and the legislation could die if Republicans, who have shown little interest in climate action, retake one or both chambers in the midterm elections.

Mr. Biden has focused on the nation’s top source of greenhouse gas pollution — transportation — by directing the E.P.A. to craft tough new limits on tailpipe emissions to speed up adoption of electric vehicles. But those rules are already under legal assault in lower courts by many of the same plaintiffs who were victorious in this week’s Supreme Court case.

As a candidate, Mr. Biden promised to end drilling on public lands — oil, gas and coal extraction from federal land and waters generates 25 percent of the nation’s greenhouse gas emissions. But when he tried to pause new drilling, it was overturned by a legal challenge from Republican attorneys general from states that produce fossil fuels. The administration held its first onshore drilling lease sale this week in seven Western states.

“The judicial branch and the legislative branch are seriously hindering Joe Biden’s ability to get the job done on climate,” said Richard Lazarus, a professor of environmental law at Harvard, who served on Mr. Biden’s E.P.A. transition team. “A lot of the optimism that everyone had a year ago is being replaced by pessimism. They’re running out of options right now.”

The Biden administration contends that it remains possible for the United States to meet its climate targets, by cobbling together a mix of executive actions.

“Ambitious climate action presents a singular opportunity to ensure U.S. global competitiveness, create jobs, lower costs for families, and protect people’s health and well being, especially those who’ve long suffered the burden of inaction,” Michael S. Regan, the E.P.A. administrator, said in a statement. “E.P.A. will move forward with lawfully setting and implementing environmental standards that meet our obligation to protect all people and all communities from environmental harm.”

The Supreme Court ruling left intact the E.P.A.’s authority to regulate greenhouse gas emissions but blocked any attempt by the agency to write regulations so broad that they force the closure of coal-fired plants, which generate the most carbon dioxide, or compel utilities to switch from fossil fuels to wind, solar and other clean sources.

The E.P.A. still plans to issue tougher regulations to control methane, a potent greenhouse gas that leaks from oil and gas wells. And it plans stricter limits on other types of pollution generated by power plants, such as mercury, smog and soot. The idea is that cracking down on those pollutants could force electric utilities to clean up or shut down the dirtiest facilities, such as coal-burning power plants, which produce more carbon dioxide than gas-fired plants.

“Those air pollution rules will have co-benefits — as they are being enforced, they will squeeze out some CO2 pollution,” said Leah Stokes, a professor of environmental policy at the University of Santa Barbara, California, who has advised congressional Democrats on climate legislation. “It wouldn’t be the same amount. Every time we take a tool off the table we’re in a worse position.”

Meanwhile, the private sector has already been shifting away from fossil fuels and toward renewable energy sources.

Electric vehicle sales have doubled over the past year, making up about 5 percent of new vehicle sales in the United States in the first quarter of 2022, compared with about 2.5 percent in the first quarter of 2021. General Motors has pledged to stop producing gasoline-powered vehicles by 2035, with other carmakers setting similar goals. Ford Motor is producing an electric version of the F-150 pickup truck, the country’s best-selling vehicle, and has taken customer reservations for more than 200,000 of them.

With the cost of solar and wind energy dropping below the price of coal and natural gas in many parts of the United States, renewable sources of electricity now make up 20 percent of the nation’s energy mix, up from 15 percent a decade ago.

But the aftermath of the Covid pandemic, combined with the war in Ukraine and the related ban on Russian oil have scrambled global energy supplies, and prompted President Biden to tap the Strategic Petroleum Reserves and urge producers to pump more oil, at least in the short term. Clean energy producers in the United States also face significant obstacles from an outdated electricity transmission system.

And the private sector is not moving quickly enough to cut emissions to the level that scientists say is needed to avert climate catastrophe. Mr. Biden wants half of new cars sold in the United States to be electric by 2030, and all electricity to come from wind, solar and other zero-carbon sources by 2035.

“We do see a powerful trend emerging in the private sector both driven by consumers who are demanding cleaner options, that is driving a shift in our energy mix, and toward electric vehicles, but that pace of change is really not sufficient to meet the long-term targets,” said Sasha Mackler, an energy analyst at the Bipartisan Policy Center, a Washington research organization. “For that, you still need policy. The administration doesn’t have the right tools to get us all there. Success in the time that we need it, according to the scientific community — that requires Congress.”

Congress in the coming weeks could still pass a scaled-back version of the spending bill that has been stalled on Capitol Hill for months. A version of the bill that passed the House last year includes $300 billion in clean energy tax incentives for producers and purchasers of clean electricity and electric vehicles.

But its current status is uncertain: Mr. Manchin blocked the larger spending bill that includes the tax credits last December, although he has recently restarted talks with the Senate majority leader, Chuck Schumer, Democrat of New York, about the prospects for a less ambitious version. Under Senate rules, that bill must be passed by Sept. 30. The Senate is in recess through the second week of July, and will break again for the month of August, leaving Democrats limited time to reach agreement on a package that has eluded consensus for the past year.

Democrats say the Supreme Court decision lends urgency to the push to pass that bill. Mr. Schumer said the decision will “put American lives at risk, making it all the more imperative that Democrats soon pass meaningful legislation to address the climate crisis.”

Stalled action on the federal level puts a spotlight on dozens of states that are moving ahead with their own climate plans. “If the state actions are put on steroids as the federal government realizes its impotence, the effects of that will be significant,” said Mr. Victor.

Just under half the states have already enacted significant climate policies. Their leader is California, which in the coming weeks is expected to finalize a first-in-the-nation regulation requiring that all new cars sold in the state must be electric or zero-emission by 2035. Seventeen other states are in line to adopt the same rule when it passes in Sacramento.

California also requires that 100 percent of its electricity be generated from zero-carbon sources by 2045. Twenty-one other states have some version of that clean electricity standard, and several are advancing legislation for even more stringent versions.

“Today’s ruling makes it even more imperative that California and other states succeed in our efforts to combat the climate crisis,” said Gavin Newsom, the Democratic governor of California. “While the court has once again turned back the clock, California refuses to go backward — we’re just getting started.”

But those state-level tools are also in the sights of many of the same Republican attorneys general who brought the power plant case to the Supreme Court. They have already filed a suit in the U.S. Court of Appeals for the District of Columbia Circuit — considered the second-most powerful court in the country — seeking to block state authority to mandate a transition to all- electric vehicle sales. Oral arguments have yet to be scheduled.

“It’s a knife fight,” said Ms. Stokes. “We have to fight with every single tool we have on every level and it’s going to get harder.”