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Environmental activists march to the U.S. Capitol on October 15, 2021, part of a week of protest actions to bring attention to climate change.
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
Anyone with an eye on the planet’s ticking clock should be growing frustrated with the Biden administration’s slow and sometimes backwards pace on climate action. It is increasingly difficult to assess whether the administration genuinely wants to address the climate crisis while being thwarted by political and judicial setbacks, or has simply decided that the planet’s livable future is worth auctioning off to the highest fossil fuel bidder.
Blame is not to be shared equally throughout the administration. The EPA is working on an ambitious new Clean Air Act rule to curb methane emissions, while the SEC has embarked on some promising climate financial risk assessments. But one of the biggest hindrances to climate policy is coming from an agency that isn’t traditionally thought of as “environmental”: Merrick Garland’s Department of Justice.
The DOJ functions as the federal government’s lawyer, which means it touches nearly every federal law and policy, from the Constitution to the Clean Air Act. Any enforcement action, lawsuit, or regulatory strategy has to have DOJ sign-on if the administration wants to fight for or against any climate-oriented policy. The fate of almost all of President Biden’s climate ambition will ultimately be decided in the octagon of legal challenge. Yet Garland’s DOJ has been effectively functioning as an ally to the fossil fuel industry, making the legal case for Biden to ignore his duty to both the American people and the planet.
It’s a pattern that transcends climate: From student debt to humane immigration policy, Garland’s DOJ has taken sides. To paraphrase Matt Stoller of the American Economic Liberties Project, one of the biggest problems in Biden’s administration is that he’s surrounded himself with lawyers who tell him why he can’t do things, instead of how he can do them. The consequences of Garland deliberately tying the administration’s hands at every turn will be most drastic for the climate in the long term.
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The Trump administration, in its deregulatory zeal, did an almost unthinkable amount of damage to the already insufficient environmental regulation that was once on the books. Indefensibly, Biden’s DOJ is continuing to defend much of that damage in the name of continuity and stability, instead of reassessing the impact of Trump’s slash-and-burn and charting a new way forward. For one, Biden’s DOJ is defending a Trump-era decision to issue permits to pipeline company Enbridge to build and operate the Line 3 tar sands pipeline. Line 3, which became operational earlier this year, violates Ojibwe treaty rights and emits the equivalent of 50 coal plants’ worth of climate-warming emissions per year. When asked about how the pipeline could possibly square with the president’s goals to reduce emissions, White House Press Secretary Jen Psaki insisted the administration could not comment or intervene to stop the pipeline from going live because the issue was in “active litigation.”
Yet active litigation apparently wasn’t a sufficient reason for the administration to delay the nation’s largest offshore oil and gas lease sale in history. Biden started off the year strong in January when he announced a pause on new oil and gas drilling leases on federal lands. By June, however, a federal judge in Louisiana ruled in Louisiana v. Biden that Biden didn’t have the authority to implement a systematic stoppage. The administration appealed the Louisiana judge’s decision, and the DOJ itself issued a legal opinion that the court order did not require the Department of the Interior to move forward with this specific lease sale. Meanwhile, several environmental advocacy groups, led by Earthjustice, launched a lawsuit against the administration to stop the lease sale.
In other words, the pause’s legal standing was moving through the courts, the very same “ongoing litigation” invoked by Psaki regarding Line 3 that left the question of the authority to block public land leases up in the air. Yet none of it prevented the administration from selling off more public lands for oil production than ever before. In total, 1.7 million acres of federal waters were leased for drilling in November, out of 80 million total acres that have been made available to oil and gas companies.
Meanwhile, both the Earthjustice-led litigation and the federal government’s appeal of the Louisiana decision continue, with lawyers from the DOJ’s Environment and Natural Resources Division defending the government in both cases. The American Petroleum Institute and the State of Louisiana have successfully joined the government as defendants in the Earthjustice case, while Earthjustice lawyers have filed several amicus briefs in support of the government in the Louisiana case. Seeing the very same Biden administration on both sides of the issue highlights the self-sabotaging nature of Garland’s fence-sitting. Rather than leading the nation, the Biden administration is boldly proclaiming that it has no strong feelings one way or the other about the planet.
Indefensibly, Biden’s DOJ is continuing to defend much of the Trump administration’s damage in the name of continuity and stability.
The DOJ’s moral failure when it comes to the climate crisis is particularly visible in Juliana v. United States, where it continues to oppose teenagers asking the court to intervene in safeguarding the planet’s future. Six years ago, a group of 21 children and teenagers filed a lawsuit against the United States, alleging that the federal government’s continued support of fossil fuel exploitation and consumption violates their constitutional right to life, liberty, and the pursuit of happiness. Today, Biden’s DOJ continues to defend the government against these young plaintiffs’ claims. In November of this year, nine senators and 39 U.S. representatives urged Biden to stop contesting the lawsuit, arguing that the position taken by DOJ lawyers on the United States’ behalf is misaligned with Biden’s stance on environmental justice. The myopia of the DOJ’s legal arguments astounds: A group of American youth argue for the benefits of a planet that sustains human life, while DOJ lawyers argue that the court should dismiss their complaint for lack of jurisdiction.
Another ongoing case about the health and future of American children has DOJ lawyers on the defensive. Last week, The Intercept reported on the EPA’s long-standing failure to regulate the phthalate DINP, a chemical used in plastic that causes a wide range of birth defects and cancers, and interferes with children’s sexual development. In 2000, the EPA proposed a rule that would add DINP to the toxics inventory, but never finalized it. In the 21 years since, DINP has become ubiquitous in American products, with hundreds of millions of pounds of DINP produced or imported each year. Not content to merely produce fossil fuels, Exxon is also a phthalate manufacturer, and has lobbied hard to keep the chemical in children’s toys. Earthjustice launched lawsuits against the EPA in September and the FDA in December for their continued failure to regulate. A DOJ lawyer is defending the EPA, and another will likely defend the FDA in this new case, meaning that DOJ lawyers will have a substantial say in whether this toxic chemical continues to wreak havoc on Americans’ health.
If there’s one bright spot, it’s in the department’s novel commitment to environmental justice—the DOJ Civil Rights Division has opened a first-of-its-kind “environmental justice investigation” into whether the Alabama health department’s practices put Black communities at higher risk of infectious-disease exposure. This week, the DOJ’s Environment and Natural Resources Division also expressed their commitment to “achieving the objectives for environmental justice” and enforcing corporate compliance with environmental regulation.
In some cases, course correction along these lines could be quite simple. The Biden DOJ originally defended a Trump-era approval for ConocoPhillips’s Alaska Willow project back in May, a project that would have produced more than 100,000 barrels of oil per day for the next 30 years. However, when a federal court in Alaska decided the Bureau of Land Management had failed to account for greenhouse gas emissions and vacated the approval, Biden’s DOJ allowed the clock to run out on their timeline to appeal, letting the Willow project die. Yet ConocoPhillips intends to proceed with the Willow project despite the court’s decision, and the DOJ should not lapse into inaction when future challenges to the project inevitably erupt.
Biden is, of course, the most powerful person in the country, so he has no excuse for employing anything but the very best legal team at his Department of Justice. And any good lawyer with the ability to recognize reality and “listen to the science,” as Biden has so often promised to do, should not throw up their hands in the face of opposition. DOJ lawyers should be endlessly creative in invoking America’s laws to help this country, and the global community, survive a climate apocalypse. Their mandate to defend the country’s interests requires nothing less.
Anyone who would argue that preserving a healthy and livable planet is in the United States’ interests should care about the DOJ’s next move. The DOJ can be a powerful ally or a powerful foe in the fight for our planet’s future—what it can’t do is split the difference. If it is going to choose the former, it will need to do so quickly.
