The Legal Landscape for Climate Change
Jody Freeman on the possibilities for federal action
What is the U.S. legal landscape for addressing climate change? Cox professor of law Jody Freeman provided an overview of the dynamics among the three branches of federal government during a January 31 Zoom talk convened by the Office of the Vice Provost for Advances in Learning. What she had to say about the Supreme Court was eye-opening.
Freeman, a former counselor for energy and climate change in the Obama administration from 2009 to 2010, and now an independent director of fossil fuel producer ConocoPhillips, began with background: the Biden administration’s policy challenges, the deadlock in Congress, and the role the courts play.
Regulating Three Major Sources of Greenhouse Gases
The recent history of executive-branch climate actions, she recounted, saw the Trump administration freezing, rolling back, or rescinding “every major Obama administration climate effort, whether it was regulating carbon emissions from the power sector,…trying to control emissions from the oil and gas industry, [or]…withdrawing from the international climate agreement known as the Paris accord.”
•Transportation. The Biden administration in turn has sought to halt the changes Trump had initiated, by asking the courts to hold the regulations Trump promulgated in abeyance. Acting through the Environmental Protection Agency (EPA), which “has the legal authority to take these steps under the Clean Air Act of 1972,” the White House has since early 2021 developed a new round of standards for the transportation sector, made final in December; they would control carbon dioxide emissions from cars and trucks from 2023 to 2026 more stringently than the standards put forth under the Trump EPA. (Rules for 2027 and beyond are being developed now.)
“All of those standards are really designed to ramp up over time and drive electrification,” said Freeman—and aimed to fulfill President Biden’s pledge that “half of the new cars sold in 2030 will be zero-emission vehicles. And the auto industry, including GM and Ford and others, have lined up to say they have an aspiration or goal to make sure that at least half of all new cars” and 40 to 50 percent of new trucks sold in 2030 or 2035 will be electric or zero-emission. That, she said, is “a big promise.”
•Methane. In a parallel effort, she continued, the EPA has proposed a set of standards for all oil and gas facilities to control methane leaks. Methane is a much more potent, but much shorter-lived, greenhouse gas than carbon dioxide, making it “the single fastest, most effective opportunity we have to reduce the impact of climate change.” The standards are designed to require detection, monitoring, and control of methane from existing and new oil and natural-gas operations, including production, processing, transmission, “and the rest.” After transportation, “that is the second important sector that the Biden team has identified as a big contributor to greenhouse gases.”
•Electric power. Finally, the “third leg” of the major Biden climate rules, in development now, are new standards for the electric-power industry—the area, Freeman explained, in which the courts have become involved. The Trump administration had advanced “a very weak rule” regulating the power sector that adopted “a narrow…theory of the government’s authority.” That approach, and its premise that regulation could only be applied to effect marginal changes at individual power plants, rather than covering the sector as a whole, “wound up in the courts,” said Freeman, “and the D.C. Circuit Court of Appeals struck down the Trump rule, which said that the government couldn’t do much to regulate the power sector.”
Although the rule no longer exists, Freeman explained, “the Supreme Court did grant review [of the D.C. Circuit Court of Appeals’ decision] and said it would hear the case,”—perhaps to use it “as an opportunity to send a message to the Environmental Protection Agency not to get out over its skis with the next regulation.”
Even as the Biden administration works to develop its own rule to regulate the power sector, it finds itself in the peculiar position of having to go to court to defend the Trump-era approach—“a complicated legal situation,” as she characterized it.
Congressional Inaction and Limits on Executive Power
Stepping back for a moment from the particulars of the Biden approach, Freeman asked rhetorically, “Why is the President using his executive power, with executive-branch agencies like EPA, to put in place a climate plan?” The answer, she said, is that “Congress has largely failed to adopt an approach to climate change.” The recently enacted, trillion-dollar infrastructure bill, she said, could have included a grant system for clean energy that would have awarded money to the power sector if it lowered greenhouse-gas emissions year over year—and penalized it if it did not, “but that never made it through 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 drive greenhouse-gas emissions down.
Given that “Congress isn’t adopting climate policy,” the President is using the executive branch, through “laws on the books…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 reach “a 50 to 52 percent reduction in U.S. net economy-wide greenhouse-gas emissions by 2030, which is a very significant pledge. Delivering on that,” Freeman noted, “depends now on these major regulations” governing transportation, oil and gas production, and power generation.
Freeman said she considers these developments to be positive steps, but that the rules would need to be made final during the Biden presidency and then built upon in a second term or by a successor president in order to meet such ambitious goals. Doing so will be difficult without congressional action, she noted.
The Supreme Court’s Blocking Role
Notably, the Supreme Court might play a major role in determining the success or failure of U.S climate-change policy. “As you know, there are now six justices appointed by Republicans who appear to be poised to undo precedents,” said Freeman. “They’re not being shy about willingness to reject government regulation when they think that the government has overreached,” she explained, citing their rejection of the Occupational Safety and Health Administration’s vaccine mandate for businesses. She said the governing statute is broadly worded and gives OSHA “quite capacious power to set workplace safety standards” and to protect workplaces from new hazards. The fact that the Court struck that down is “a signal” that the Court has reservations about broad government regulation.
With respect to climate change, “We’re waiting to see what the Supreme Court may do to clip the wings of the Environmental Protection Agency” as part of its review of the Trump-era power-sector rule: “There’s some concern that the Court’s reading of the Clean Air Act” will constrain the agency’s rulemaking authority.
Freeman described the stakes as enormous: “If that were to happen, we’d be left in a world, in the United States anyway, where the Congress is largely inactive on climate change” and the executive branch might be “severely constrained by a Supreme Court skeptical of regulatory power.” (For background on the long-term fallout of climate change, see the Harvard Magazine feature article, “Controlling the Global Thermostat.”)
“The starkest way to put it,” she continued, “is that we could find ourselves in a place where climate policy is not being made by the United States Congress, nor…by the elected president carrying out delegated power under laws long on the books, but…by six Supreme Court justices who are unaccountable and unelected.” If such a scenario were to transpire, Freeman put it delicately, “I think that would be an uncomfortable place for climate policy.”
Were that to occur, the Supreme Court’s limitation on U.S. action would also adversely affect international efforts to address climate change, Freeman said: U.S. leadership on climate is crucial to the success of the coalition of both large and rapidly growing economies around the world.
But encouragingly, Freeman concluded, there is broad domestic industry support for climate regulation. Automobile manufacturers have “largely lined up in favor of the new car standards,” she said, and “quite a considerable section of the oil and gas industry has been supportive of comprehensive methane regulation.” In addition, “a significant swath of the electric power industry wants the EPA to regulate their sector; they don’t want the court to scuttle the EPA’s authority” to regulate them. “My hope” she concluded, is that “the Biden administration succeeds…, the court does not severely constrain the EPA’s authority, and that success will breed success.”