Mark Humphrey/AP Photo
A man fishes at William B. Ladd Park near the Kingston Fossil Plant in Kingston, Tennesee, August 7, 2019.
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
With two years behind him and two years still left ahead, Joe Biden must recognize that his climate legacy is far from sealed. While a mixed bag of high-profile battles over major climate-relevant legislation defined the first half of Biden’s term, the next two years of federal climate action will instead be necessarily defined by the willingness of the Biden administration to boldly forge climate progress with a different toolbox.
Biden’s legislative victories are symbolically significant and worthy of celebration. Yet, the actual impact of these achievements hinges on how efficiently the executive branch implements (and enforces) a few crucial pieces of legislation, including the bipartisan infrastructure law and the Inflation Reduction Act. In truth, the administration’s climate legacy—and the livability of our collective futures—will be determined by how successfully Biden can direct his executive branch to honor their legislative mandates and to creatively fortify climate-facing law and policy. With the House in remarkable disarray, and the Senate limited in its individual powers, it remains up to Biden and his appointees to embrace the wealth of tools and authorities embedded in their offices to address the climate and biodiversity crises.
In this sense, maximizing the enforcement of new and existing laws that protect people and the planet from harm is as legacy-defining for an administration as passing laws. And not only does it not require the cooperation of Congress; it’s also just simply doing the job past Congresses have already assigned to the executive branch. The Founders wrote that the president must “take Care that the [existing] Laws be faithfully executed” for a reason. Laws are not self-executing; instead we have a branch of government tasked with implementation.
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One relevant and timely example: The Environmental Protection Agency (EPA) could right now use powers vested to it in the Clean Air Act to prevent a new gas plant and pipeline from being built.
The CEO of the Tennessee Valley Authority (TVA), Jeff Lyash, is set to finalize a plan as soon as January 9th to build a new gas plant and pipeline, to supplement the TVA’s energy portfolio after retiring two aging coal plants. The TVA, a federally owned utility run much like a private corporation, provides energy to nearly ten million people in Tennessee and surrounding states, and is governed by a nine-member board made up of president-nominated and Senate-confirmed members. The historically fossil fuel–allied board voted last year to give Lyash, a former private utility executive, full decision-making power over what new energy source (and its infrastructure) would replace the retiring coal plants.
The EPA was rightfully troubled by Lyash’s unilateral turn to natural gas. The EPA even commented on the TVA’s Draft Environmental Impact Statement that the analysis failed to quantify and disclose the impacts of greenhouse gas emissions and also failed to fully disclose modeling for clean-energy alternatives. In no uncertain terms, the EPA concluded that “Alternative A, the preferred alternative,” referring to the plan for a new gas plant and pipeline, “would result in significant GHG emissions and associated environmental impacts.” The EPA strongly recommended that the proposed action be modified or a different alternative be selected.
The president should be aggressive and creative in matters of this magnitude.
Unsurprisingly, the TVA failed to remedy these issues in its final Environmental Impact Statement filed in December. In the face of this failure, the EPA disappointingly did nothing. But the EPA has other options available to follow through on its assessments of impropriety and wrongdoing.
Section 309 of the Clean Air Act states the following: “In the event the [EPA] Administrator determines that any such legislation, action, or regulation is unsatisfactory from the standpoint of public health or welfare or environmental quality, he shall publish his determination and the matter shall be referred to the Council on Environmental Quality.”
The White House Council on Environmental Quality (CEQ) is the agency responsible for implementing the National Environmental Policy Act (NEPA). That authority includes ensuring environmental reviews are accurate and thorough. The council, led by Chair Brenda Mallory, also advises the president on climate change, environmental justice, federal sustainability, public lands, oceans, and wildlife conservation. It has the power to review projects such as the TVA pipeline and carry out a number of actions, including submitting the matter to the president.
It’s not written into law exactly what the president might do upon receiving a submission from the CEQ. But that’s sort of the point. The president should be aggressive and creative in matters of this magnitude. He should use his bully pulpit to require the TVA fall in line with his stated emissions reduction goals, just as he did when demanding that the U.S. Postal Service, another independent agency, green its vehicle fleet. Biden should not need a reminder that there can be no new investments in gas if the world seeks to keep planetary warming below 1.5 degrees Celsius. Gas is not safe, nor clean, nor an appropriate transition or “bridge” fuel. Drilling, producing, and burning gas is deadly.
A letter with 136 organizational and individual signatures was sent Wednesday to the EPA urging Administrator Michael Regan to immediately refer the TVA’s plan to the CEQ. The EPA should feel empowered and supported to take actions such as this one, considering the power is given by existing law and has public support.
This is far from the only obscure power waiting in the wings of the executive branch. There are countless powers that already exist, needing no further congressional approval and facing few barriers outside of political will, that should be embraced this year. While Republicans beclown themselves in Congress, it’s time for Biden’s team to get to work.
