The legal landscape of climate change

What is the American legal landscape to fight climate change? Cox law professor Jody Freeman provided insight into the dynamics between the three branches of the federal government during a Jan. 31 Zoom conference hosted by the Office of the Vice Provost for Advancement in Learning. What she had to say about the Supreme Court was telling.

Freeman, a former energy and climate change adviser in the Obama administration from 2009 to 2010, and now an independent director at fossil fuel producer ConocoPhillips, started with the background: the political challenges of the Biden administration, the deadlock in Congress and the role the courts play.

Regulate three major sources of greenhouse gases

The recent history of the executive Climate actions, she recounted, have seen the Trump administration freeze, roll back or reverse “every major climate effort by the Obama administration, whether it’s regulating carbon emissions from the electricity,… trying to control emissions from the oil and gas industry, [or]…withdraw from the international climate agreement known as the Paris Agreement.

Transport. The Biden administration in turn sought to halt the changes Trump had initiated, asking the courts to suspend regulations enacted by Trump. Acting through the Environmental Protection Agency (EPA), which “has the legal authority to take these actions under the Clean Air Act of 1972”, the White House has since early 2021 developed a new set of standards for the transport sector, made final in December; they would control carbon dioxide emissions from cars and trucks from 2023 to 2026 more stringently than the standards set under Trump’s EPA. (Rules for 2027 and beyond are being worked on.)

“All these standards are really designed to accelerate over time and lead to electrification,” said Freeman – and were intended to fulfill the commitment of President Biden that “half of all new cars sold in 2030 will be vehicles zero emission “. And the auto industry, including GM and Ford and others, have lined up to say they have an aspiration or a goal of ensuring that at least half of all new cars “and 40 50 percent of new trucks sold in 2030 or 2035 will be electric and zero emissions. This, she said, is “a great promise.”

Methane. In a parallel effort, she continued, the EPA proposed a set of standards for all oil and gas installations to control methane leakage. Methane is a greenhouse gas far more potent, but life much shorter than carbon dioxide, making it “the fastest and most effective opportunity available to us to reduce the impact climate change “. The standards are designed to require the detection, monitoring and control of methane from oil operations and existing and new gas, including production, processing, transmission, “and the rest”. After transport, “this is the second important sector that Biden team identified as a major contributor to greenhouse gases.”

electric power. Finally, the “third step” of Biden’s key climate rules being drafted are new standards for the electricity industry — the area, Freeman explained, in which the courts have gotten involved. The Trump administration had advanced “a very weak rule” regulating the electricity sector that adopted “a narrow theory…of government authority.” This approach, and its premise that regulation could only be applied to effect incremental changes in individual power plants, rather than covering the industry as a whole, “ended up in court,” Freeman said, ” and the DC Circuit Court of Appeals struck down the Trump Rule, which said there was little the government could do to regulate the electricity industry.

Although the rule no longer exists, Freeman explained, “the Supreme Court granted review [of the D.C. Circuit Court of Appeals’ decision] and said he would hear the case, “perhaps to use it” as an opportunity to send a message to the Environmental Protection Agency not to go out on her skis with the next regulation.

Even as the Biden administration struggles to craft its own rule to regulate the electricity sector, it finds itself in the unique position of having to go to court to defend the Trump-era approach — “a complicated legal situation”, as she called it.

Congressional inaction and limits on executive power

Step back for a moment from the details of Biden’s approach, Freeman asked rhetorically, “Why is the president using his executive power, with executive agencies like the EPA, to put in place a climate plan?” The answer, she said, is that “Congress has largely failed to take an approach to climate change.” The recently passed trillion-dollar infrastructure bill, she said, could have included a system of clean energy grants that would have given money to the electricity sector if it was reducing greenhouse gas emissions year after year – and would penalize it if it didn’t, “but it never got passed by Congress.” And although Congress has allocated funds to support electric vehicles and charging infrastructure, a step she called “very positive”, there has been no major legislation to reduce greenhouse gas emissions. greenhouse effect.

Since “Congress does not make climate policy,” the President uses executive power, through “laws in effect…to make as much progress as possible.” At the Glasgow Climate Meeting last November, the annual conference of the parties to the Paris Agreement, the administration pledged to achieve “a 50-52% reduction in net greenhouse gas emissions”. greenhouse on the scale of the American economy by 2030, which is a very important commitment”. . Delivery that,” Freeman noted, “now depends on those major regulations” governing transportation, oil and gas production, and power generation.

Freeman said it believes these developments as positive steps, but that the rules should be made definitive during President Biden and developed during a second term or by a successor president to achieve ambitious goals too. This will be difficult without congressional action, has she noted.

The Blocking Role of the Supreme Court

In particular, the Supreme Court could play a major role in determining the success or failure of US climate change policy. “As you know, there are now six Republican-appointed justices who seem poised to undo precedent,” Freeman said. “They don’t hesitate to reject government regulations when they think the government has gone too far,” she explained, citing their rejection of the Occupational Safety and Health Administration’s vaccination mandate for businesses. She said the governing law is drafted in broad terms and gives OSHA “fairly broad authority to set workplace safety standards” and to protect workplaces from emerging hazards. The fact that the Court struck this down is “a signal” that the Court has reservations about general government regulation.

On climate change, ‘We are waiting to see what the Supreme Court might do to clip the wings of the Environmental Protection Agency’ in its review of the electricity sector rule of the Trump era: “There is some concern that the Court’s reading of the Clean Air Act” will limit the agency’s regulatory power.

Freeman described the stakes as enormous: “If this were to happen, we would be left in a world, in the United States anyway, where Congress is largely inactive on climate change” and the executive branch could be “severely constrained by a Supreme Court is skeptical of regulatory power. (For more information on the long-term effects of climate change, see the Harvard Review feature article, “Global Thermostat Control”.)

“The most blunt way to put it,” she continued, “is that we could find ourselves in a place where climate policy is not made by the United States Congress, nor … by the President elected exercising delegated powers under laws long over the books, but… by six unaccountable and unelected Supreme Court justices. If such a scenario were to occur, Freeman put it delicately: “I think it would be an uncomfortable place for climate policy.

If that happens, the limitation on U.S. action imposed by the Supreme Court would also have a negative effect on international efforts to combat climate change, Freeman said: U.S. leadership on climate is crucial to the success of the coalition of major, fast-growing economies around the world.

But encouragingly, Freeman concluded, there is broad support for the domestic industry to climate regulation. Automakers were “largely aligned in favor of new automotive standards,” she said, and “a considerable part of the oil and gas industry has supported comprehensive regulation of methane.” In addition, “a significant part of the electric power industry wants the EPA regulates its sector; they do not want the court undermines the authority of the EPA “to regulate. “My hope,” she concluded, is that “… Biden administration succeeds, the court does not severely limit the authority of EPA, and that success will bring success.”

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