Democrats are apoplectic about Joe Manchin’s announcement last week that he will not support Biden’s latest spending spree, the so-called “Build Back Better” bill that would cost $5 trillion over 10 years. As politicians, they are mainly angry because they can’t deliver giveaways to likely voters prior to the next election, but they’re also upset because they don’t have a back-up plan to make good on the Biden administration’s ambitious commitment at the recent Glasgow conference to reduce U.S. emissions of greenhouse gases (GHGs) from fossil fuels by 50 percent by 2030. The Progressive Caucus is demanding that the president use his “executive authority” to implement his agenda.
The way to use existing executive authority against climate change is staring them in the face in the form of two pending citizen petitions filed by Dan Galpern. Galpern is a brilliant environmental lawyer from Eugene, Oregon, who founded the Climate Protection and Restoration Initiative (CPRI), a nonprofit that represents climate scientists including former NASA climate expert James Hansen, former EPA scientist Donn Viviani, and John Birks, professor emeritus at the University of Colorado. They are trying to get the Biden EPA to use existing law against climate change.
Last January Galpern and Hansen wrote to President Biden urging him to use EPA’s authority under a 1952 statute, the Independent Offices Appropriation Act (IOAA), to charge user fees on GHGs from burning fossil fuels rather than giving away the right to pollute for free. Charging user fees for dumping garbage into the public’s air makes sense because as long as we keep giving away the right to pollute, there isn’t much incentive to develop less polluting technologies. Those of you who took the course will recognize that as Economics 101: goods and services that are given away for free are over-consumed. That is why charging a nominal fee of even just 5 or 10 cents per plastic grocery bag will get some people to use reusable bags as opposed to giving away the disposable plastic ones for free. (In the interest of full disclosure, CPRI’s carbon fee proposal builds on an article that I wrote pointing out that EPA has existing legal authority to charge user fees to polluters.).
But the second petition by CPRI filed last week with EPA is the real game-changer. CPRI is asking the EPA to use its broad authority under the Toxic Substances Control Act (TSCA) to set deadlines for how long fossil fuels that when burned release GHGs into the atmosphere may continue to be used in particular applications and to pay to remove some of the carbon dioxide that is already there. TSCA, which has been on the books since 1976, is even more potent after amendments in 2016 that repealed industry-friendly language that EPA had relied on as an excuse to deny a previous TSCA petition about GHGs back in 2015.
Section 6 of TSCA now says that EPA may ban or restrict any chemical substance if its manufacture, use, disposal, or any combination thereof poses an unreasonable risk to the environment:
If the [EPA] Administrator determines … that the manufacture, processing, distribution in commerce, use, or disposal of a chemical substance or mixture, or that any combination of such activities, presents an unreasonable risk of injury to health or the environment, the Administrator shall by rule … prohibit or otherwise restrict the manufacturing, processing, or distribution in commerce of such substance or mixture … “
The theory of the CPRI petition is that the “disposal” of GHGs, which are “chemical substances” under TSCA, “presents an unreasonable risk of injury to … the environment” according to the EPA’s long-stated view of climate science under both Republican and Democratic administrations.
The key issue will be whether this general language about regulating chemicals in TSCA is sufficiently specific authority to apply to the disposal of GHGs. The Supreme Court has invented a legal principle called the “major questions doctrine,” which holds that big-ticket issues of public policy cannot be decided by administrative agencies under ambiguous or obscure statutory delegations. For example, in 2000, the Supreme Court held that the Food and Drug Administration (FDA) lacked the authority to regulate nicotine, the addictive drug in cigarettes, despite language in the FDA’s statute giving it authority to regulate the safety of drugs and drug delivery devices generally.
A case brought by West Virginia claims that the Obama administration’s 2015 “Clean Power Plan,” which tried to use an obscure section of the Clean Air Act about regulating pollution from existing coal-fired power plants to try to force states to get more of their electricity from renewables such as wind and solar, violates this major questions doctrine. That case is set to be argued before the Supreme Court on February 28, and no one can say for sure how it will come out, but when that same Clean Power Plan first came before the Supreme Court almost six years ago in February 2016, the Supreme Court took the unprecedented step of issuing a stay prohibiting that rule from going into effect while it was being challenged in the lower courts based on a finding that the challengers had a “probability of success” in striking it down.
Meanwhile over half the states have enacted programs mandating more renewable energy despite the absence of a federal requirement.
If the Biden administration is serious about climate change, as opposed to merely talking about it, EPA’s next move could be to try use existing general statutes like the IOAA and TSCA to regulate GHGs. Such regulations would stand a good chance of being upheld in court, but either way, the current administration would benefit politically even if “Republican judges” struck it down later. So why not give it a shot?
The CPRI petition contains an impressive 79-page summary of the science on climate change, but as an environmental lawyer, not a scientist, I am not competent to evaluate it. I can report, however, that a significant consensus of scientists in the field do think that climate change is a real problem and that human beings are contributing to it. True, some scientists question how significant the human contribution really is, and some even question whether the world is really warming as much as others say it is. That is as it should be. Science only progresses when iconoclastic scientists question the received wisdom of their times.
But the scientific consensus at any given time is the best that government policymakers have to go on. History teaches that the prevailing scientific consensus may turn out to be wrong; witness the Salem witch trials or the traumatic cancer lawsuits in the 1950s and 1960s, when people collected millions by claiming they got cancer when a baseball struck them in the chest or some other traumatic event injured them and they got cancer as a result.
That’s a potential argument for government not intervening: human beings may not be wise enough to manage systems as complex as the global climate or the cause of cancer. But that’s a philosophical issue for another day. The issue today is a more modest, but significant one: assuming that human beings are bound, bent, and determined to try to manage the climate globally, what is the next move by the U.S.? The two CPRI citizens petitions to require EPA to use its existing legal authority illustrate what is likely to happen if we cannot enact new legislation focused specifically on climate change, which every Congress since 2003 has tried but failed to do.
CPRI’s one-two punch of a program to phase out GHG releases from fossil fuels over time where we can, and to charge fees on them in the meantime, would clearly set us on the road to phasing out or substantially reducing fossil fuel use. In addition, a TSCA rule would make EPA’s legal authority to charge user fees a slam dunk. If a TSCA regulation would phase out the right to dispose of GHGs by releasing them into the environment, but certain limited uses were allowed to continue in the meantime, it would be clear as a bell that the government was providing those polluters with a “special benefit,” which is the trigger for charging user fees under the IOAA. User fees are not some arcane experiment; they amounted to over $331 billion a year, or roughly 10 percent of the federal budget, in fiscal year 2017.
Moving ahead with a threat to regulate under EPA’s existing authority would also create incentives for everyone to pass a compromise statute designed specifically to address climate change at long last. A new statute tailored specifically to climate change would probably use trade-able permits like the GHG trading system in the EU, the trading systems for GHGs in several states, and the successful federal acid rain trading program under the 1990 Clean Air Act. Markets can allocate the rights to use a scarce resource like the atmosphere much more efficiently than bureaucrats can under the older “command and control” statutes of the 1970s such as TSCA. But statutes that impose costs rather than give away benefits only get passed in Washington these days if everyone is faced with a credible risk of something even worse from their perspective, and the threat of regulation under TSCA might just finally bring everyone to the table.
This has been a long time coming. The Supreme Court ruled in 2007 that greenhouse gases are an air pollutant that EPA must regulate unless it can come up with a good reason not to. During the intervening 14 long years, our legal system at the national level has dilly-dallied about addressing climate change. Part of the problem is that under Obama, the EPA developed an ambitious but legally tenuous rule to restructure state electricity grids to use more renewable energy as opposed to relying on the “TSCA ban plus user fee” approach, which is more clearly supported by existing law. Obama’s 2015 Clean Power Plan was good politics for the then-president, who claimed credit for making a “historic commitment” on climate without actually doing anything except making a rule that would have required the states do the hard and unpopular work of actually reducing GHGs three years later. The Biden EPA announced quietly last February that it has no intention of enforcing the Obama-era rule even if the courts would allow it to do so, claiming of course that it would do something even bigger.
“Progressive” Democrats like to feel good by proposing to tax the rich and give the money away to what they consider “good causes,” such as subsidies for the rich people who buy Teslas and even larger subsidies for electric vehicles made in union plants. President Biden is particularly adept at this kind of virtue-signaling; he “is nothing if not a master of the political gesture,” as I wrote in The American Spectator earlier this year. (READ MORE from E. Donald Elliott: Get Ready for the Gesture Presidency)
Stay tuned. It will be interesting to see whether Biden & Co. just like talking about climate change or whether they are actually willing to take tough, and potentially very unpopular, action under existing law to reduce the release of GHGs that contribute to climate change. Their recent use of existing legal authority to require new cars to average 55 miles per gallon starting with the 2026 model year — which many experts think amounts to a ban on new gasoline-powered automobiles — indicates that they just might really do something this time.