John Raby/AP Photo
In this August 2018 photo, American Electric Power’s John Amos coal-fired plant in Winfield, West Virginia, is seen from an apartment complex in the town of Poca across the Kanawha River.
The Supreme Court just dealt a blow to the Biden administration’s ability to reduce climate pollution, precisely when we need all hands on deck to address the climate emergency. In a bad but limited decision, the Court curtailed a section of power plant emissions regulation under the Clean Air Act.
But contrary to the doomsday headlines and hand-wringing, the Supreme Court did not foreclose all roads to climate action with its decision in West Virginia v. EPA.
The decision shined a floodlight on the narrow, rapidly closing window President Biden has to act with all his powers to steer the country away from climate chaos. He must do everything in his power to curb fossil fuel emissions—and he has a menu of options still available to do so.
Importantly, the Supreme Court’s decision left other powers under the Clean Air Act intact. For example, the Environmental Protection Agency can adopt a national science-based cap on climate pollution and require states to come up with plans to meet that cap. Chief Justice John Roberts indicated in his majority opinion that this may be a “sensible solution” to greenhouse gas regulation.
The EPA can also compel steep reductions in climate emissions from cars and trucks, as well as airplanes, ships, and trains. Only power plant emissions were addressed in the ruling.
The decision shined a floodlight on the narrow, rapidly closing window President Biden has to act.
Biden can direct federal agencies to stop approving new fossil fuel infrastructure projects, starting with the Formosa Plastics petrochemical complex in Louisiana, the Enbridge Line 3 pipeline in Minnesota, and the Sea Port Oil Terminal project off the Texas coast.
Building new fossil fuel infrastructure locks in future climate-damaging emissions. As U.N. Secretary-General António Guterres recently said, “Investing in new fossil fuels infrastructure is moral and economic madness.”
Federal law also allows Biden to ratchet down oil and gas production and deny new permits on federal lands and waters. Permitting has actually increased under Biden, and a recent proposed program from the Interior Department could allow new drilling in some federal waters in the Gulf of Mexico and off Alaska, so there’s work to be done here.
Biden can also declare a national climate emergency and reinstate the crude oil export ban that Congress overturned in 2015. Oil drilling in the Permian Basin has exploded since then, creating the Earth’s largest climate bomb. Production quadrupled in the past decade and is expected to grow aggressively in the next, spewing climate- and health-damaging pollution from wellheads to the export terminals built next to low-income communities and those of color.
Banning crude oil exports alone could cut greenhouse gas emissions by up to 165 million metric tons each year—the equivalent of shuttering 42 coal plants.
These are bold climate actions, but we have hope that the Biden administration has the political will to take them on. And there is precedent for him to do so.
Earlier this year, we wrote a legal blueprint outlining how the president can deploy his emergency powers to supercharge the transition to a green, just energy system. More than 1,200 organizations in the People vs. Fossil Fuels coalition have called on Biden to embrace these powers, declare a national climate emergency, and take swift executive action to reject new fossil fuel leases, infrastructure, and exports.
In June, Biden heeded these calls by invoking the Defense Production Act to jump-start renewable-energy manufacturing.
In doing so, he signaled a sea change in his administration’s strategy to combat the climate emergency and redress deep-seated inequities. For the first time, he also put our country’s climate strategy on a wartime footing.
The emergency measures to manufacture solar panels, insulation, and heat pumps are desperately needed to speed the United States toward renewable energy and break the fossil fuel industry’s dangerous grip on our country. And in an unprecedented move, the president will convene environmental justice and labor leaders, not only industry and government, to chart the path to a clean, fair energy system.
While the Defense Production Act alone can’t reform that whole system, it can catalyze a far-reaching market transformation. Congressional efforts are under way to fund the president’s clean-energy orders at scales of hundreds of billions of dollars. While the first tranche of appropriations, at $100 million, is admittedly insufficient, it’s a first step.
While right-wing extremists take over the Supreme Court and a deadlocked Congress dithers, the planet burns. It will take urgent wartime mobilization to bring the fossil fuel era to a close, prevent catastrophic climate change, and leave future generations a resilient and livable world.
Given the refusal of the other branches of government to take the climate emergency seriously, Biden’s new willingness to use his executive powers to curb climate change and environmental injustice makes that future feel within reach. But he must act with urgency.
In the post–West Virginia era, the Court has left the door open. Biden needs only to walk through.
Jean Su and Maya Golden-Krasner are co-authors of “The Climate President’s Emergency Powers.”
