Five ways Biden can fight climate change
The incoming Biden administration is the first to treat the existential threat of climate change as a top legislative priority. Unfortunately, a Senate controlled by climate-skeptical Republicans and a Supreme Court poised to limit the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas emissions (GHGs) will dampen those ambitions.
Still, there are ways the new administration can lead on climate — even if the Senate and the Supreme Court don’t follow. Drawing on my three decades as a federal government lawyer, I offer these opportunities:
Get investors good data
Many investors care about climate and collectively they can move markets based on their sustainability commitments. Right now, they don’t have all the information they need to make climate-smart decisions. We can change that by enforcing regulations already on the books.
The Securities and Exchange Commission’s (SEC’s) 2010 interpretive guidance detailed how to disclose climate-related risks. Unfortunately, since 2010, the SEC has filed no enforcement actions related to climate change. An assessment of 600 of the largest U.S. companies showed that almost half do not provide decision-useful disclosures on climate-related risks. The disclosures provided are boilerplate, too brief and effectively meaningless. The SEC staff monitoring these disclosures do not have authority to directly request information from companies, but must rely on what the company decides to share. It is hard to imagine an EPA inspector being similarly limited to relying on what compliance information the company decides to share.
Members of Congress recognize the importance of climate disclosure. Sen. Elizabeth Warren (D-Mass.) and others proposed the Climate Risk Disclosure Act (CRDA) of 2019, which requires even more comprehensive data be provided to investors, though it lacks separate enforcement mechanisms. Still, the current regulations provide ample authority to support responsible climate investments — if enforced.
Leverage federal spending to protect the climate
Federal spending can help win the fight against climate change. The U.S. government spent more than $430 billion on contracts for goods and services in 2015, making it the nation’s largest purchaser. The federal government awards over $500 billion annually in grants to state and local governments, the third largest item in the budget after Social Security and national defense.
Federal agencies evaluate applicant funding requests based on a point system. The Biden administration can issue an executive order calling for agencies to allocate points in their competitive solicitations to companies that pursue innovative, measurable approaches to climate change.
Target the most dangerous chemicals
Carbon dioxide is important, but it is hardly the only GHG we need to address. Some lesser-known GHGs have a global warming potential hundreds or thousands times greater than carbon dioxide, so that small quantities of their emissions have an outsized impact. For example, hydrofluorocarbons (HFCs) are over 100 times more potent than carbon dioxide. President Biden’s incoming climate advisor, John Kerry, has said that phasing down HFCs is “the biggest thing we can do [on climate] in one giant swoop.” The Kigali Amendment to the Montreal Protocol seeks to phase down HFCs, but the U.S. has refused to join. Signing on to the Kigali Amendment is an obvious first step (requiring Senate consent).
But the new administration must also target other types of fluorinated GHGs, such as sulfur hexafluoride — which has a global warming potential 22,200 times greater than carbon dioxide. Sulfur hexafluoride is used by electrical utilities in their “switchgears” — fuses and circuit breakers.
The federal government can provide incentives for sector leaders to share data on the use of sulfur hexafluoride and help develop technical solutions using alternative compounds; the results setting an enforceable baseline. The government could provide public acknowledgement of industry leaders, creating good will for their brand.
Also, industry leaders could develop comprehensive best practices starting with an inventory of sulfur hexafluoride using equipment, estimating current emissions and then implementing protocols for handling sulfur hexafluoride, which could be the basis for regulations.
Make companies pay to pollute
Taxpayers foot the bill for damages caused by fossil fuel companies’ carbon emissions. In fact, tariffs are lower on dirty energy (carbon-intensive goods) and higher on cleaner goods. There is a stalemate in Congress on how to fix this: a carbon tax, cap and trade, or nothing.
As President Trump demonstrated, the executive branch has legal authority to levy tariffs on products that impact national security. Biden could place tariffs on imported units of fossil fuels, based on GHGs emitted, given the impact of climate change on national security. The tariff would effectively put a price on imported carbon, breaking the Congressional stalemate to pass climate legislation and buying time for Congress to debate a more comprehensive statutory scheme.
With the current conservative Supreme Court, regulations under the Clean Air Act (CAA) to reduce GHGs without explicit Congressional mandate are unlikely to survive. The tariff avoids that issue because it is based on trade legislation. (To address domestic production, EPA would still need to craft effective regulations pursuant to section 111(d) of the CAA to control GHGs from power plants and other stationary sources.) Capitalism doesn’t work when companies offload their costs onto the public; tariffs offer a partial, legally defensible fix.
Facilitate climate-smart construction
The National Environmental Policy Act (NEPA) requires federal agencies to assess the environmental effects of their proposed actions before making decisions. Unfortunately, the Trump administration stripped NEPA of much of its climate change-related evaluation, so the Biden administration needs to reinstate the Obama-era NEPA guidance.
In addition, the guidance should require EPA to incorporate climate-friendly recommendations in their review process to facilitate a dialogue between agencies and community groups.
For example, during my time at EPA, we recommended that federal contractors expanding the Los Angeles airport install diesel particulate filters on construction equipment, which generated community good will by protecting the health of local residents and limiting GHG emissions.
The time is now. According to the United Nations, we have just over a decade to cut carbon emissions nearly in half to avoid catastrophic climate change. The above five ideas can quickly get us on the road to a healthier climate.
Dan Reich served as a U.S. Department of Justice Civil Division trial attorney and an assistant regional counsel at EPA Region 9 in San Francisco for 33 years before retiring in 2017. The views expressed in this article represent Mr. Reich’s personal views.
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