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Op-Ed | October 8, 2021

How Biden Can Take On the Climate Crisis by Himself

ClimateDepartment of JusticeExecutive Branch
How Biden Can Take On the Climate Crisis by Himself

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President Biden has failed to live up to his promise to progressives to be a climate president. U.S. emissions continue to rise. Last week, 23 unique plant and animal species were declared extinct. A catastrophic pipeline oil spill in California is actively killing fish, birds, and wetland ecosystems. And in violation of treaty rights that are constitutionally the supreme law of the land, Biden allowed Enbridge’s Line 3 tar sands pipeline to become operational on October 1, which will add emissions equivalent to 50 new coal-fired power plants and will inevitably spill. Biden is standing in support while water protectors are violently arrested and the Anishinaabe peoples living in the path of the project are terrorized and abused.

All of this is separate from the fate of the Biden agenda, encapsulated in the Build Back Better reconciliation bill. If it passes, it will be an unprecedented investment in this country’s social safety net and clean-energy future, perhaps the last best chance at meaningful climate action. It will also be completely insufficient, trillions less than the investments needed and dwarfed by the incalculable value of preserving a habitable planet.

Next Monday’s Indigenous Peoples’ Day begins a week of back-to-back climate actions in Washington. The organizers, the Build Back Fossil Free coalition, are demanding that President Biden stop approving fossil fuel projects—including Line 3—and declare a national climate emergency to speed the end of the fossil fuel era.

The coalition only asks Biden to use his own executive power outside of the legislative process, which is wrecked by lobbying and fossil fuel–backed Senate holdouts. They have chosen to put pressure back on Biden, to state loudly that as president, his hands are not tied, that he has options to protect the planet and mitigate its destruction.

So what exactly can Biden do as chief executive?

As Indigenous activists have screamed for years, he can put a stop to the many genocidalpipelines active right now, including Line 3, Line 5, the Dakota Access Pipeline (DAPL), and the Mountain Valley Pipeline. Biden and his Army Corps of Engineers could revoke necessary federal permits for Line 3. They can refuse to grant crucial permits for Line 5 and the Mountain Valley Pipeline. The administration could initiate a proper environmental-impact statement process for DAPL, unlike the current assessment being performed by a government-contracted firm that is literally a member of the American Petroleum Institute. The Army Corps could also reverse its guidance from April of this year that gave permission for oil to flow through DAPL in absence of a legally required federal permit. These actions are perfectly legal. They are simply a matter of will.

To use another example, the Interior Department’s Bureau of Ocean Energy Management recently upheld an oil and gas lease sale in the vulnerable Gulf of Mexico. Their written decisionsaid that the Intergovernmental Panel on Climate Change’s (IPCC) August report, identifying humans as “unequivocally” causing climate change and creating a “code red” situation, “does not present sufficient cause” to influence their environmental impact statement. That might not be as bad as the EPA, which still only considers methane 36 times more potent of a greenhouse gas than carbon. The IPCC has said that, for the 20 years before it degrades, methane is actually 86 times more potent—and those 20 years are what matters most immediately for our climate future. Had Biden “followed the science,” as he often says in the context of the pandemic, he certainly wouldn’t have enabled the production of so much oil and gas.

An aggressive administration could also crack down on corporate pollution through existing laws and regulatory power. In the Department of Justice, the Environmental and Natural Resources Division (ENRD) files the most environmental lawsuits of any organization in the country. Under the leadership of Trumpist coup enthusiast Jeffrey Bossert Clark, the ENRD reached record-low enforcement levels and weakened a number of environmental rules, including restricting federal funds for Superfund cleanup sites and barring the use of Supplemental Environmental Projects (SEPs), which force corporations to use civil settlement funds on projects that reverse some of the harmful impacts of their wrongdoing.

Biden, to his credit, reversed the Trump SEP decision. But if the ENRD used these and other tools at scale, it could crack down on the myriad ways our current economic system exploits the planet. For one, the Environmental Protection Agency (EPA) is required to refer any Clean Air Act cases with penalties above $356,312 to the ENRD. Pursuing these penalties could be a deterrent for future lawbreakers. Settlements referred from the EPA can also include long-term injunctions and criminal sanctions, both of which can target executives themselves instead of just their companies.

In addition, as six state attorneys general pointed out recently, Biden could direct his DOJ to withdraw legal briefs filed during the Trump administration in support of fossil fuel companies. The cases in question involved states alleging that oil companies violated state consumer protection laws by downplaying the risks of climate change and pretending to be part of climate “solutions.” Biden’s failure to remove the legal arguments for the record gives oil companies backing in their fight to move the cases from state to federal court.

Biden could also declare climate change a national emergency, unlocking executive authorities under the National Emergency Act. Federal law states that defending national interests includes preparing for, responding to, and recovering from national emergencies, including natural disasters. The Department of Defense has already announced climate change as a national-security “priority”—it would not be a stretch for Biden to designate an emergency.

If he declared a climate emergency, Biden could suspend offshore oil and natural gas leases, expand battery or electric-vehicle transportation by redirecting Pentagon funds to renewable energy, and “supercharge” the Defense Production Act, requiring businesses to accept contracts for materials or services deemed necessary to address climate change. This would commit the private sector to taking urgent climate action by producing solar panels, wind turbines, public transportation, electric vehicles and charging stations, and the like.

Congressional leaders including Senate Majority Leader Chuck Schumer support this move and have introduced the Climate Emergency Act of 2021, arguing that it would give the administration more “flexibility” in how it addressed the impacts of climate change. Thirty-eight countries have already issued some kind of resolution declaring climate change an emergency, and in December 2020, 380 activist groups urged the Biden administration to join them.

These are all ideas for acting on the green transition itself, but Biden must also ameliorate the impacts of climate change—in other words, do what he can to alleviate human suffering. The people who experience the worst impacts of climate change would also benefit the most from executive policies Biden could pass tomorrow, like allowing climate refugees to safely seek asylum in the U.S.

President Biden must use every bit of executive power he has available to him to address the climate crisis. The road map is there, and failing to use it is a complete dereliction of his duty. Biden has a mere 39 months left in his term, and we all have only 99 months until the ominous 2030 deadline to reduce greenhouse gas emissions. There is no time to waste.

Photo: RINGO H.W. CHIU/AP PHOTO

ClimateDepartment of JusticeExecutive Branch

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