How the Biden Administration Is Reacting to SCOTUS Climate Setback

You might expect that Gina McCarthy, President Joe Biden’s national climate advisor, would be frustrated this week.

This was the best way to tackle climate change. The Supreme Court ruled that the Environmental Protection Agency (EPA), which regulates emissions from the power sector, had been stripped of its authority. McCarthy has been at the center of climate policy efforts for the last decade, and as the head of the Obama Administration’s EPA, she crafted the agency rule at issue in the Court’s ruling.

Yet in conversation in the days leading up to the ruling, McCarthy was surprisingly optimistic—not that the ruling would go the Administration’s way, but rather that the White House could chart a path to slash emissions even if it didn’t. “We’ve set very solid goals, we’re making significant progress on the transition to clean energy,” she told TIME on June 28. “And that is not going to live and die by the Supreme Court’s decision.”

To meet the White House’s goals, she said, the Administration needs to get “creative” and find novel ways to galvanize the energy transition. That includes inventive use of regulations at places like EPA, as well as the Administration’s engagement with the private sector, use of its own purchasing power, and use of the Defense Production Act to accelerate the production of domestic clean energy technology, she says. “It can’t just be about using regulations or using Congress to fix this; to actually continue accelerating, we have to be creative,” she said, one of at least ten times she used the word creative in the course of the conversation.

It is certainly true that EPA power plant regulations are far from the only—or even the most important—tool in the climate policy toolkit in 2022. But in order to get the U.S. anywhere near the Administration’s goal of slashing emissions in half from 2005 levels by 2030, the creativity that McCarthy speaks about needs to be matched with speed and focus. There’s a lot to do and little time—not to mention many distractions.

‘It was an entirely different conversation’

McCarthy believes McCarthy’s optimism is due to the fact that the government has more options than she did when she started fighting climate change.

Obama was unable to pass any climate legislation during his first term and turned to the EPA for new regulations to reduce emissions from power plants. In 2015, McCarthy was appointed as the Clean Power Plan administrator. The regulation set state-by-state emissions reduction standards for the power sector and was designed to shut down coal-fired power plants—though states were left to decide on their own how to meet their targets. While it never actually took effect as it wound its way through the courts, it quickly became the centerpiece of Obama’s climate strategy.

Surprisingly, today’s circumstances look very similar. While Congress is still slow to act on climate funding, the Administration has turned to less-than-ideal options for regulating emissions. McCarthy believes that things are actually quite different. Although large utilities opposed the Clean Power Plan they now embrace the transition to cleaner energy and are partnering with the Biden administration. And with climate change now seeping into a range of other areas—from trade to agriculture—the Administration no longer needs to rely on narrow authorities under the Clean Air Act. “During the Obama Administration, you know, it was so much earlier on in the climate challenge,” said McCarthy. “When I ran the EPA, it was the linchpin, and the options were limited. It was an entirely different conversation.”

In discussing climate actions Biden has taken that wouldn’t have been imaginable during the Obama years, McCarthy cites his use of the Defense Production Act, which will allow the government to coordinate with industry on the production of a range of clean energy technologies including solar panels, heat pumps, and insulation. The Biden Administration’s commitment for the federal government to transition its fleet of cars and trucks to zero-emissions vehicles shows how it’s setting a market signal for industry to transition, she says. The Administration is also proud of the efforts it has made to accelerate the expansion offshore wind. This includes bringing together both state governments as well as the private sector.

In spite of the Supreme Court decision in West Virginia v. EPA, the EPA’s work remains a key component of the Biden Administration’s strategy. While the Supreme Court significantly curtailed the agency’s authority to make major changes to the nation’s power sector under a particular provision of the Clean Air Act, it didn’t limit the agency from addressing climate change in other ways. TIME moderated panelist Michael Regan from the EPA stated that after the Supreme Court’s ruling, the agency was going to demonstrate other regulations for the environment it has the authority to implement. “We have a suite of regulations that we can present to the power sector in one fell swoop, looking at regulating water, waste, and air quality,” he said. “And the power sector then can take a look at the economics to comply with those rules at one time, or they can say ‘hey, to hell with the past, let’s invest more quickly in the future.’”

It’s not clear that all of these so-called ‘creative’ measures put the Administration on track to meet its emissions reductions goals. It’s hard to have an up-to-the-minute accounting of where all of these initiatives leave those targets, but an in-depth analysis from the Rhodium Group earlier this month that takes account for a range of policy developments suggests it will be tough without Congress’ help. Without further policy actions, current emissions levels will not change and could fall 17-25% below 2005 levels by 2030. A combination of McCarthy’s work, and legislation from Congress, that includes tax incentives for clean-energy deployment, would be able to lift the U.S. over the 50 percent reduction threshold promised by the Administration.

Congress appears to be likely to pass some bipartisan climate spending bill. However, the details remain unclear. McCarthy, of course, says she’s optimistic. “This is all about getting to a 50% reduction in greenhouse gases by 2030,” she says. “We think that the work that we’re doing now will get us very close to that.”

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