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Time is running out for Biden’s EPA to act on climate

The Biden EPA could decide America’s climate future only if it finishes work in the coming months.

A power plant at the edge of a lake belches steam from its smokestack.
Without a new EPA power plant rule, coal-fired plants like the Mitchell plant in West Virginia could still be active through 2040.
Jeff Swensen/Getty Images

So far, President Biden’s legacy on climate change is pretty insubstantial. There’s time to change that if he can quickly make much better use of his Environmental Protection Agency (EPA).

The president put nearly all his hopes for climate action into passing his Build Back Better legislation through Congress. That bill would have spent $550 billion on clean energy and electrified transit. It failed to garner a majority in the Senate, and due to continuing reticence about the measure on the part of more conservative Democrats like Sen. Joe Manchin (D-WV), it appears unlikely any slimmed-down replacement will pass.

In an ideal world, congressional and EPA action would complement each other. Laws are more durable than EPA policy alone, while the EPA can maneuver around legislative gridlock. Congressional spending on clean energy tax incentives helps bring down implementation costs for businesses, making it easier for the EPA to implement stricter rules.

But even without Congress, the EPA has many regulatory powers it can unilaterally use to fight climate change. The agency can rein in climate emissions from the country’s biggest polluters in the power sector, transportation, industry, and oil and gas by upgrading efficiency standards and monitoring. Biden’s EPA needs to act soon if it wants to make these rules and make them last. Every significant rules change must go through a mandatory multistep process that can take up to two years — roughly the amount of time Biden has left in his first term.

That process requires sifting through tens of thousands of public comments and amassing enough scientific evidence to justify the regulation. The Obama EPA showed what happens when an administration gets around to finalizing these rules too late in a term; the climate rules finalized in his last two years were reversed by Trump and the courts because they were either still in draft form or not yet implemented.

All this becomes much easier if Biden gets a second term, but given his polling numbers, there’s no guarantees. Addressing climate change can’t wait out another decade of policy reversals by presidents from opposing parties. So Biden’s got to get as much done as permanently as he can while Democrats still hold power.

That’s why, 15 months into the Biden administration, the EPA is at an extremely important turning point — especially if Biden is serious about his goal of halving US pollution from peak levels in the next eight years. The agency needs to finalize as much as possible by the end of 2022, and needs to do so carefully, allowing it to mount the strongest defense possible in conservative-tilting courts.

If it fails to do so, the Biden administration will have squandered valuable time in the fight against climate change. In a matter of years, the world is likely to pass 1.5 degrees Celsius of warming, and be well on its way to catastrophically higher levels, if steep cuts aren’t made by 2025. Even if Biden gets a second term, every moment counts — and with congressional action off the table, he needs to start making far better use of the EPA.

Why Biden’s climate policy has gotten off to a slow start

In the first hours of his presidency, Biden promised a “whole of government” approach to climate change, signing executive orders that prompted agencies to change the way they operated during the Trump era.

After that, the White House placed most of its bets on Congress passing a massive infrastructure package along with historic climate spending. Congress did pass a historic infrastructure law, but it’s one that may wind up increasing emissions because of its investment in highway expansion. The climate legislation — with $550 billion in tax credits for clean energy and electrification — is unlikely to ever happen.

The executive branch is on its own. Thanks to the broad powers granted by the Clean Air Act, however, Biden has a tool for combating climate change in the EPA.

Asked about the agency’s accomplishments, deputy assistant administrator Joe Goffman of the EPA’s Office of Air and Radiation told Vox by email, “We’ve set the strongest climate pollution standards for cars in history by model year 2026.”

The EPA has also finalized its initial phase-out of hydrofluorocarbons used in refrigerants. And it managed to meet all the congressionally required deadlines imposed by the 2020 law the American Innovation and Manufacturing Act.

Those are important successes. But the current list of finalized rules is pretty short compared to the list left to tackle. As David Doniger, senior strategic director of the Natural Resources Defense Council’s climate program, put it: “We’re way in overtime with dealing with many of these problems.”

At a budget hearing in early April, Sen. Sheldon Whitehouse (D-RI), the Senate’s most vocal lawmaker on climate change, rattled off the number of rules the EPA has yet to finalize on climate change. They include new regulations targeting coal in the power sector, methane from oil and gas, industrial operations, and cars. He was dissatisfied with the pace of progress. “How long do you think you have?” he asked.

Biden’s EPA administrator Michael Regan responded that the EPA had a slow start because he inherited a mess of an agency.

“I think we have to be honest about the state the EPA found itself in when President Biden was elected,” Regan said, claiming he has “staff working nights and weekends” to play catch-up. He added, “I am damn proud of what the agency has done over the past year with the resources it has.”

It’s true that the Trump administration rolled back more than 200 environmental regulations, and EPA morale was at record lows in the Trump era. Over his term, the 15,000-person workforce dwindled by over a thousand. That’s equal to 1988 levels, and the agency’s workload has increased a lot since then, in part because it has been given a mandate by Congress and through Supreme Court rulings to regulate toxic chemicals and greenhouse gas emissions.

Staffing is certainly a big piece of the problem, according to Doniger, who says a diminished workforce means the EPA is forced to pick and choose what gets done on deadline. At its current levels, getting one rule done by a certain deadline means borrowing staff from other programs and leaving other priorities understaffed. Moving people around was how the EPA was able to accomplish the things it has so far, Doniger said.

The other big issue the EPA is facing is money. While the Biden administration is working down the ranks to fill political slots (some of which depend on a painfully slow Senate confirmation process), it is constrained to a limited budget for filling out the rest of the EPA’s ranks. That has made the process of filling vacancies slower than ideal.

Most of the EPA’s biggest rules are still works in progress

With fewer staff and a smaller budget than it needs (Biden’s 2023 budget request asked for a 29 percent increase), the EPA still promises ambitious action is on the way.

Those promises include regulating the main sources of climate pollution, including coal-fired power plants, and burning off methane leaks in a practice called flaring from existing oil and gas producers. Many of these haven’t been officially proposed yet, meaning there’s a long road ahead for them.

Other rules are still in draft stages, meaning they’re still months (or years) away from being finalized, and don’t go as far as climate advocates feel is needed. The EPA’s proposal for trucks is expected to slash 90 percent of the air pollutant nitrogen dioxide by 2031, but does far less for carbon emissions from the tailpipe; the change will likely increase the electric truck fleet to just 1.5 percent by 2027.

Should they be implemented, all of these would be considered landmark policy. But at this stage in the climate crisis, they’re also the minimum of what’s expected from a Democratic administration to tackle the main sources of US climate pollution.

And there’s more the EPA could and should do. Notably, it hasn’t written a methane proposal that addresses smaller oil and gas wells — lower-producing sites that make up 80 percent of the nation’s wells, and are responsible for making areas like New Mexico and Texas’s Permian Basin one of the biggest sources of methane emissions in the world.

Then there’s the power sector: The most important step for tackling climate pollution includes closing the last of the nation’s 200 coal-fired power plants. But the EPA hasn’t proposed any rule yet for existing plants.

Regan promised in the April hearing the EPA would be ready to go with a new power plant rule soon after the Supreme Court issues a decision in June expected to limit its tools for cleaning up electricity. Depending on the decision, the EPA’s ability to mandate more renewables on the grid over the next decade could be severely restricted.

The huge amount of unfinished business that remains adds up to a bleak picture. Essentially, the Biden administration could be more talk than action if it doesn’t really accelerate work on these issues and follow through with tougher EPA policy through 2022.

Biden’s EPA needs to balance limited time with durability

In making new policy, the EPA needs to exercise a lot of caution: It’s important that the agency checks all its boxes in putting forward new regulations to ensure they aren’t just overturned by the next Republican president.

“The Trump administration had this huge loss rate in court for its rollbacks in part because it skipped a lot of those steps and did a lot of terrible analysis,” NYU Law’s regulatory policy director Jack Lienke said.

The Biden administration is working more thoroughly, and has endeavored to ensure science supports its policy changes. Even thorough work, however, doesn’t guarantee long-lasting climate regulation.

From the conservative-dominated Supreme Court down to the lower courts, judges are more skeptical than ever of deferring to agency expertise, a precedent that is affecting the Biden administration’s social cost of carbon and public lands’ leasing policy: In February, a Louisiana federal judge (and Trump appointee) banned the administration from reinstating an Obama-era calculation of the social and economic costs from carbon emissions, an important metric used throughout government policymaking. The inevitable threat of lawsuits has slowed everything down even more.

“An agency can’t seem to be doing anything too ambitious or novel,” Lienke explained. “Agencies have to do even more in terms of building up an incredibly detailed record, cataloging exactly why they have authority to do this, and why the benefits of doing it outweigh the costs. They’re up against a more hostile judiciary.”

That leaves the Biden administration with two imperfect options: Move quickly and risk a greater chance of an upset in courts, or move slowly and leave rules more vulnerable to a possible Republican successor.

So far, the EPA has proceeded cautiously, choosing between priorities. To tackle climate change, it needs to find ways to move not just with caution but with speed. How much forward momentum it can muster will become apparent in the next few months, but the more it can do, the better off the US will be as it attempts to make serious progress toward its climate goals.