Biden’s Executive Power to Cut Emissions Limited as Supreme Court Vote to “Safeguard… Foundational Constitutional Promise” by Preventing the Delegation of Authority to the EPA

The Supreme court has removed some of President Biden’s power to meet his green campaign promises, but with green jobs on the rise in the US, there is still hope that progress can be made

Published

July 13, 2022

The US Supreme Court decision

On the 30^th of June, the US Supreme Court ruled 6-3 in favour of 19 states that brought a case appealing against what the attorney general of Missouri called the Environmental Protection Agency’s (EPA) “job-Killing regulations”.[i] The regulation referred to the highest level of the US appellate court system pertained to section 111 (d) of the US Clean Air Act; this legislation serves to implement and enforce performance standards upon existing sources of air pollution.[ii] Further, the legislation allows the EPA to prescribe a plan to ensure these standards are met when the state fails to provide one.[iii] In its ruling, the court’s majority argued the “Major Questions Doctrine”; previously unused in the Supreme Court, this doctrine contends that administrative agencies such as the EPA must be able “to point to ‘clear congressional authorisation’ when they claim the power to make decisions of vast ‘economic and political significance.’”.[iv] The dissenting minority of the supreme court pointed out that presently that the power plants addressed by section 111 (d) produce around 25% of US territorial emissions.[v] So too, this dissenting minority of the court argued that “curbing this output (fossil fuel power stations) is a necessary part of any effective approach for addressing climate change”.[vi]

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This presents the question of how the Biden Administration will deliver an “effective approach” with EPA powers limited by this decision?

Biden’s promises in jeopardy

In his campaign for President of the United States, Joe Biden made ambitious promises on climate action.

Ensure the U.S. achieves a 100% clean energy economy and reaches net-zero emissions no later than 2050.
Build a stronger, more resilient nation. Investing in and building smart infrastructure investments to rebuild the nation and to ensure that our buildings, water, transportation, and energy infrastructure can withstand the impacts of climate change.
Rally the rest of the world to meet the threat of climate change.
Fulfil our obligation to workers and communities who powered our industrial revolution and subsequent decades of economic growth.[vii]

On his first promise, the ruling from the Supreme Court will undermine attempts at unified progress across the country. With the 19 states that brought the case to the court responsible for 44% of US emissions in 2018 and having seen just an average 7% reduction in these emissions since 2000, there is deepening worry that progress is not fast enough.[viii]

Regarding the will to build a more resilient nation, the invasion of Ukraine and ensuing energy insecurity have redefined the US approach to resilience. Just hours after the invasion, the American Petroleum Institute called for an increase in oil drilling both on land and at sea in order to “ensure energy security at home and abroad”.[ix] This puts outside pressure on Biden’s campaign plan for resilient infrastructure, which sought to achieve a carbon pollution-free power sector by 2035.[x] In a debate with Bernie Sanders, Joe Biden himself said, “No more drilling on federal lands, no more drilling, including offshore – no ability for the oil industry to continue to drill – period.” yet on the 1^st of July, his administration released a five-year drilling development plan that could see 11 private leases awarded.[xi]

Biden’s third promise to “rally the world” on climate change also hangs in the balance; Zero Carbon Academy’s own news tracker has identified that sentiment for the keyword “America” fell to the second lowest since the tracker’s inception.[xii] As our tracker clearly shows, sentiment ebbs and flows over time, the long-term trend of sentiment for America is downwards, and the latest trough (attributed to the supreme court decision on the EPA) will do nothing to “rally the world”.

Zero Carbon Academy News Tracker data on the keyword “America”

Concerning promises to workers and communities that powered the industrial revolution in the US, an area which the supreme court cited in their decision, the US Green Economy national overview found that even states without progressive climate legislation have seen a growth in green jobs and output.[xiii] This could be reassuring for those working in the US power generation sector, particularly those in the fossil fuel sector. The prospect that jobs in sustainable sectors are growing and will continue to grow could address and alleviate fears from the 19 states that brought the case to the Supreme Court that section 111 (d) does not have to be “job-killing” but can instead be reskilling.

Where next for Biden’s green agenda

Biden’s green programme is undeniably damaged by the Supreme Court ruling, but this doesn’t mean that the US President is giving up on the climate crisis; in response to the decision, he said, “I will not relent in using my lawful authorities to protect public health and tackle the climate crisis".[xiv] Also, in his statement, Biden reaffirmed a desire to create “good-paying jobs” in the green economy. Considering that the 2022 LinkedIn Green Skills report found that US jobs in renewables and the environment had more than trebled since 2015, there is surely hope within the Biden administration that these jobs will continue to grow and prove to the 19 states that climate action doesn’t mean the demise of working-class America.[xv] It may also be a moment of change for the corporate world of power generation in the US, with EPA authority diminishing US utility companies' individual responsibility. A representative of Duke power said to Reuters that "we and many of our stakeholders share the view that we can take a leadership role in tackling greenhouse gas emissions associated with our business.".[xvi] Head of US policy for the UN-Backed Principles for Responsible Investment (PRI) Gregory Hershman told the Responsible Investor that investors “are stepping up to the plate” to address the impact of the Supreme Court decision but called for a bipartisan political movement to support these investors.