President-elect Joe Biden may have to get creative if he wants his climate policies to survive — or avoid — scrutiny by a federal court system brimming with more than 200 Trump-appointed judges.
The incoming administration is widely expected to unravel four years' worth of Trump-era climate rollbacks in an effort to help the United States regain its footing in the fight against rising global temperatures.
But legal experts say much of Biden's climate action would get bogged down in courtroom brawls, especially if the administration leans heavily on federal agencies to undo Trump rules and replace them with new regulations (Climatewire, Oct. 23).
Some climate advocates worry that there isn't enough time to let actions to slash greenhouse gas emissions work their way through the courts.
"It is one of the frustrating things about our process — it is a democracy," said Georgetown Climate Center Executive Director Vicki Arroyo. "This is really the best we can do when you've got people turning over."
Unless runoff elections in Georgia help Democrats secure a majority in the Senate, Biden likely won't have the option of brokering meaty climate legislation.
The new administration would then need to focus its efforts on meticulous rulemaking and incremental climate action, like limiting oil and gas leases or allocating congressionally approved stimulus funds to sustainability efforts.
When they do pursue regulatory actions, Biden officials are unlikely to repeat the legal mistakes the Trump administration made when it tried to scale back Obama-era rules, said Bracewell LLP partner Ann Navarro. Trump's efforts to undo regulations often stumbled on procedural grounds, and the administration's replacement rules are only just beginning to make their way through the courts.
"A rulemaking is a heavy lift and has [to] be approached in a serious manner in order to survive expected challenges," Navarro wrote in an email. "I think we will see the new Administration approach the task deliberately in order to achieve durable results."
Orders vs. rules
During his first days in the White House, Biden may choose to focus on executive orders, rather than time-consuming agency rules.
Unlike rulemaking — which entails lengthy notice and comment periods, extensive records, and interagency consultation — executive orders can be signed and delivered straight from the Oval Office.
On the other hand, there are also limits to what a president can accomplish through a directive, said Caitlin McCoy, an attorney with Harvard's Environmental & Energy Law Program.
"You can only do so much through an executive order," she said. "I think one thing is requiring a revamp of the social cost of carbon ... and finding a way to integrate that into how agency decisionmaking happens."
The social cost of carbon is a metric that helps federal agencies determine the economic benefit of curbing carbon dioxide emissions.
McCoy said Biden could also issue orders that limit offshore oil and gas leasing or halt the Keystone XL pipeline by revoking the presidential permit.
'Once the money is spent, it's spent'
While Biden is unlikely to capture lawmakers' support for sweeping climate legislation, stimulus packages could be potential vehicles for climate action that would escape legal scrutiny.
Congressionally approved investments in clean transportation, building weatherization and efficiency improvements could present opportunities to move the dial on climate, as could COVID-19 relief packages.
"Once the money is spent, it's spent and the next administration can't take it back," said University of California, Berkeley, professor Dan Farber. "Unlike regulations, which routinely end up in court, decisions about how to spend money typically don't."
Stimulus deals also send messages to the private sector about the federal government's priorities, even in the absence of regulations, said Golden Gate University law professor Helen Kang.
She added that lawmakers should be wary of throwing money only at clean energy advancements favored by energy industry interests at the expense of "new technologies for energy efficiency and the equitable distribution of renewable energy to communities of color."
Biden has promised to reenter the Paris Agreement on his first day in office, reupping the United States' global commitment to reduce greenhouse gas emissions.
The move would put the nation back at the "high table" as a major player on climate, said John Morton, a partner at the Pollination Group and former White House senior director for energy and climate change under Obama.
Rejoining the Paris Agreement won't automatically lead to greenhouse gas reductions, said Richard Revesz, director of NYU's Institute for Policy Integrity. That work will still need to be done through policy.
"But it will set a mood and tone and may immediately lead other countries to take climate change issues more seriously," he said.
Even rulemaking and other actions that end up getting bogged down in the courts would send signals to the market that the United States is putting its focus back on climate, said Kang of Golden Gate University.
"There is a real power to setting the agendas that may get challenged," she said, "but I think they change things on the ground."