New Year’s resolutions may not be worth much, but one hopes the Biden administration has set a few strong ones and intends to stick with them. In the months leading up to the presidential election this November, the White House has a lot of work to do to safeguard climate and environmental policies against the threat of a Republican-controlled White House and Congress.
At the top of that to-do list, of course, is being reelected with as much Democratic backing as possible in the House and Senate. As Biden tries to make the case for a second term, though, his administration will also need to finalize rules and regulations that will affect how close the country gets to meeting the climate goals he’s set out.
A slate of rules still needs to be put on the books. The Environmental Protection Agency is due to set emissions standards for passenger vehicles and about a quarter of heavy-duty trucks, requiring that manufacturers meet new limits on greenhouse gas and other pollutant emissions across their product lines, starting with 2027 models. The agency projects this could result in as many as 67 percent of new cars being electric by 2032. Also still in the works are regulations on power plant emissions and soot—both hotly opposed by heavy industry, fossil fuel interests, and the politicians they donate to. Other pending items include Securities and Exchange Commission rules to require that companies disclose greenhouse gas emissions and the risks climate change poses to their business. The Federal Energy Regulatory Committee is due to set rules that could mandate that grid operators, states, and utilities plan to incorporate clean energy. While FERC is an independent agency, Democrats will have to decide whether they want to play hardball in keeping Joe Manchin’s preferred, fossil fuel–boosting candidate off of it.
Ideally, new rulemaking will happen sometime before Memorial Day, after which policies could become vulnerable to an infuriating law called the Congressional Review Act. That Clinton-era statute lets Congress roll back any rules issued during the last 60 days they were in session with a simple majority vote in each chamber and the president’s signature; regulations written at the end of the Biden administration, that is, could be torn up (“disapproved”) if Republicans control the White House and Congress, even by a razor-thin margin. Agencies would be further prohibited from implementing “substantially similar” rules. Congress had only used that authority once prior to 2017, when the Trump administration and GOP House and Senate overturned 14 Obama-era policies.
While climate advocates would like to see the final versions of proposed standards strengthened from prior drafts and eliminate loopholes for polluters, many also fear that the legal headwinds just about any new policy faces are making agencies unnecessarily timid. Specifically, the right-wing legal movement has mounted a full frontal assault on the administrative state, undermining agencies’ ability to write their own policies as corporations peddle challenges in lower courts.
Policymakers are particularly worried about Supreme Court hearings scheduled for later this month on a pair of cases that could overturn something called the Chevron deference. In essence, SCOTUS’s 1984 ruling in Chevron v. Natural Resources established a precedent that courts defer to the expertise of federal agencies on the question of what constitutes a “reasonable interpretation” of federal statute. Judges, in other words, don’t generally get to decide when agency rules and regulations overstep the mandate Congress has given them in laws passed at any point since 1776. Overturning Chevron offers courts potential veto power over agency rules that do not, in their estimation, hew extraordinarily close to the text of federal law. If the Supreme Court does overturn Chevron, it will be a massive victory for corporations eager to be held accountable to as few laws as possible. Counsel for the plaintiff in one of the cases set up to decide the fate of the Chevron deference—Relentless Inc. v. Department of Commerce—is the New Civil Liberties Alliance, which receives funding from foundations, like Donors Trust, with ties to right-wing legal movement architect Leonard Leo.
These and other legal cases pose real constraints, argues Jeff Hauser, founder and executive director of the Revolving Door Project, a watchdog group that monitors federal agencies. But there’s a delicate balance to be struck between writing smart policies and bad ones. “Regardless of the scope of impact of a proposed regulation, it should be crafted to appear as banal and traditional as possible,” Hauser told me. This would require courts friendly to the idea of dismantling regulations to go after long-standing precedents—a tougher sell for even conservative jurists, albeit not an impossible one. “Make things appear as traditional as possible, and emphasize the most traditional … possible gains.” Still, he argues, the administration has been “much more inclined toward excessive passivity than heedlessly moving forward.”
Environmental lawyer and Earthjustice president Abigail Dillen praised the pace at which the Biden administration has been working to roll out new rules, many of which aim to finalize before they become vulnerable to the Congressional Review Act in late spring. Just this last week, the Department of Energy announced new efficiency standards for residential freezers and refrigerators. Over the next year, she told me, agencies need “to do what it’s always done: Talk to people impacted and make smart rules. But if the administration is negotiating against itself out of worry about what the courts may do, I think that’s a mistake. The worst thing that this kind of uncertainty could do is create a chilling effect that prevents an ambitious administration from making good on its climate and environmental promises.” Rather than preemptively weakening rules, or failing to get them on the books at all, Dillen said, “The only way to deal with a court that’s aggregating power and making politically unpopular decisions is to make sure that the court takes the blame.”
A lot of this may sound unglamorous and technical, but there are also opportunities here to bolster Biden’s reelection chances. Ongoing Treasury Department rulemaking over how to implement the administration’s trademark legislative agenda—namely, the Inflation Reduction Act—could raise the profile of these popular policies and catch voters’ attention. They could protect the clean energy incentives Biden championed against Republican attacks over the coming decade too. “It’s going to be another year of getting as much steel in the ground and as much industry commitment as possible so that it becomes politically untenable to pull the rug out from underneath people who are making money and counties that are getting a new tax base,” said Dillen.
However much money for clean energy and environmental protection gets out the door in the next 12 months, a second Trump administration will still pose a fearsome threat to any and all progress fighting climate change. As usual, corporate-funded Republican think tanks have already mapped out extensive plans to slash and burn the administrative state in the event Republicans take the White House later this year, including in the Heritage Foundation–helmed “Project 2025,” an extensive policy proposal for an incoming Republican president. If it does take power, the GOP can be expected to continue the kind of long-running war of attrition that has hobbled federal agencies’ enforcement abilities across the board, reversing the modest progress the Biden administration has made to rebuild those capacities.
Even if strengthened rules are finalized before becoming vulnerable to a Congressional Review Act “disapproval,” a Republican administration would have tremendous sway over their fate. “If you don’t assign anyone to examine gas pipelines then it doesn’t matter what regulations exist to reduce methane emissions from pipelines,” Hauser said. “That’s just a matter of discretion.” The Biden administration needs to do as much as it can to protect climate and environmental regulations in the time it has left. It also really, really needs to win.