Tom Williams/CQ Roll Call via AP Images
Activists with the People vs. Fossil Fuels demonstration call for President Biden to stop approving fossil fuel projects, October 15, 2021, at the Capitol Reflecting Pool.
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
The Washington Post reported this week that President Biden is considering bartering the approval of significant fossil fuel projects in exchange for Sen. Joe Manchin’s (D-WV) vote on a modified reconciliation package that would include renewable-energy tax credits. Described as a “difficult balancing act,” the White House has apparently discussed the possibility of greenlighting ConocoPhillips’ 30-year Willow Project in Alaska, the Virginia/West Virginia Mountain Valley Pipeline, and a five-year leasing plan out of the Interior Department that, unlike what Biden pledged during his campaign, would offer new leases for drilling in the Gulf of Mexico and on Alaska’s North Slope.
On its own, the idea that massive fossil fuel projects would even be on the table in the U.S. is abhorrent, given the devastating and rapidly accelerating climate crisis. In the words of U.N. Secretary-General António Guterres, “Investing in new fossil fuels infrastructure is moral and economic madness.” But beyond the scientific reality of the situation, the political reality that a sitting president would trade decisions about how to exercise his sole prerogative to execute the law for a legislative package that was on thin ice even before it was inevitably killed is also a significant problem.
First of all, Manchin has proven time and time and time again that his commitments are anything but binding. He has demonstrated an utter unwillingness to bargain in good faith with the president or anyone else and has instead elected to mislead and misrepresent himself (and his vote) to Biden and his aides. Thus far, Biden’s year-plus overtures on his agenda have landed Manchin with every concession he’s sought and left Biden counting only his losses. Indeed, just before this piece was published, Manchin said he would not vote for any climate measures.
Biden has real power to make progress on the issues he purports to care about, and to otherwise fulfill the campaign promises for which he was elected. He cannot continue sacrificing these powers in search of a congressional compromise that hinges upon broken promises elsewhere.
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The president should always be looking for creative ways to use existing law to better people’s lives, but playing compromise with Manchin is not only an ineffective means to this end, it’s also simply not Biden’s job.
As a refresher, the president’s role is to lead the executive branch in executing laws passed by Congress. This comes straight from Article II, Section 3 of the Constitution, in what is commonly known as the Take Care Clause. The president, it states, “shall take care that the laws be faithfully executed.”
In the case of the fossil fuel projects Biden may trade for Manchin’s vote, the laws in question would include the Federal Land Policy and Management Act, which requires the Department of the Interior to prevent “permanent impairment” and “unnecessary or undue degradation” of public lands from oil and gas development. And if a comprehensive and accurate environmental impact statement under the National Environmental Policy Act was fulfilled with deference to the physical realities of climate change and pollution, these projects would undoubtedly be found to cause permanent impairment and unnecessary degradation. A bad-faith reading of the statute to grease the wheels of a possible trade would represent an abdication of Biden’s constitutional responsibility to “take care that the laws be faithfully executed.”
In a functioning democracy, the president would not view his obligations under existing law as bargaining chips for provisions in a new piece of legislation.
Coverage from The Washington Post asserted that unnamed “experts” said that the additional emissions from the Willow Project, the Mountain Valley Pipeline, and an undecided number of new leases “could likely be worth it” in exchange for legislatively approved renewable-energy tax credits. If this sounds awfully familiar, it might be because seven short years ago, Congress agreed to lift the crude oil export ban in exchange for continued wind and solar tax credits. U.S. emissions have only decreased modestly since then, and that of course is a huge undercount, since exporting U.S. oil means that the emissions show up in other countries, not here. So we’ll need to see the math on what makes this new trade-off “worth it.”
The bottom line is that, even without considering the climate impacts of these projects and the simply idiotic political strategy of negotiating with a corporate senator who has previously been content to watch the world burn, this is not how the separation of powers is supposed to work.
In a functioning democracy, the president would not view his obligations under existing law—which are, it bears reminding, the expression of democratic will—as bargaining chips for provisions in a new piece of legislation, even if the provisions could potentially be beneficial. Yes, Biden should be using his position at the bully pulpit to pressure legislators of his own party into supporting his agenda. But when negotiations happen, those negotiations must be within the parameters of the legislation, and should not involve dangling 30-year drilling projects, the merits of which are supposed to be decided based on existing law. If Manchin hates existing law so much, he is welcome to follow the rules like everyone else and attempt to get enough votes in the legislature to change it.
The true powers of the presidency are not located in Senate negotiations, but Biden has proven that many are lost there. From this latest revelation of bad-for-climate deals with Manchin to his equally ludicrous intent to install an anti-abortion McConnell crony to a lifetime on the federal judiciary, Biden has to remember he is no longer a senator but instead the country’s only president. That means he must stop playing by the rules set for him in backroom deals with bad-faith senators. These negotiations have not worked before, and there is no reason to believe that they will suddenly begin to work now. To believe otherwise is not only nonsensical, it represents a real danger to Biden’s stated priorities and to the likelihood of their implementation.
It is far more politically efficacious to simply exercise all of the tools already at his disposal throughout the executive branch in order to implement and fight for these crucial policy goals—which we would remind our “popularist” friends were popular enough to have been part of his victorious campaign platform. Manchin, McConnell, and others like them have already proven they have no interest in aiding in the realization of the president’s agenda. Biden should believe them, and stop offering them the opportunity to sabotage it.
