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Congress failed on climate. What can Biden do now?

Without congressional action on climate, there will be even more riding on Biden’s regulations on power plants, transportation, and fossil fuel leasing. | Alex Wong/Getty Images

What Biden meant when he called climate change an emergency.

President Joe Biden promised on Wednesday that since Congress won’t tackle the climate crisis, he will.

“Let me be clear, climate change is an emergency,” Biden said, standing in front of a closed coal power plant turned renewable hub in Somerset, Massachusetts. “In the coming weeks, I’m going to use the power I have as president to turn these words into formal official government actions, through the appropriate proclamations, executive orders, and regulatory power that a president possesses.”

Sen. Joe Manchin (D-WV) shredded any last hope for a climate-focused reconciliation package. As president, Biden still has the power to have more impact on climate change than he has so far. He’s also more constrained than Congress was to meaningfully cut emissions across the economy.

On Wednesday, Biden announced mostly piecemeal actions — $2.3 billion for a FEMA buildings program to combat heat waves, releasing guidance for the Low Income Housing Assistance Program to establish programs like community cooling centers, and opening up 700,000 acres for offshore wind energy bids in the Southeast.

None of this will fill the gap left by $550 billion in undelivered climate funds in the once-hoped-for reconciliation bill.

But Biden faces immense pressure from the left to do a lot more and to announce it soon. Sen. Jeff Merkley (D-OR) told reporters at the Capitol on Monday that the demise of a climate bill “frees up the president to use the full powers of the executive branch.”

One of the powers Biden could use is his emergency authorities under the National Emergencies Act of 1976. Declaring the first-ever climate emergency would show Biden is putting the full weight of the executive branch behind combating the climate crisis, climate advocates argue. In 2021, more than 40 percent of the country lived somewhere hit by a climate-related disaster; even as Biden spoke, more than 100 million Americans were under excessive heat warnings.

The Center for Biological Diversity argued in a February report that an emergency declaration would allow the president to use the Defense Production Act to boost renewable manufacturing; use the National Emergencies Act to halt crude oil exports and stop leasing to fossil fuels companies and new drilling offshore; and use the executive branch’s $650 billion procurement budget to buy clean energy and electric vehicles.

Biden did call climate change an “emergency” on Wednesday, but he was not moving forward with any kind of official declaration just yet, although the White House hasn’t taken it off the table. There is precedent for Biden to invoke these kinds of powers, even if it has never been attempted for climate change. Since 1976, every president has declared at least one national emergency while in office, although the vast majority have been for individual disasters.

Whether Biden would want to use the emergency declaration to implement those policies is another question. Biden might theoretically be able to halt fossil fuel exports, but practically he’s very unlikely to do it given Russia’s war in Ukraine. And an emergency declaration isn’t a silver bullet for climate change; it doesn’t necessarily exempt Biden from the scrutiny of the courts or asking for appropriations from Congress. Trump invoked the same law to redirect Defense funding to “build a wall,” which drew lawsuits challenging the reallocation (though courts ultimately sided with Trump or declined to review his actions).

There’s a lot Biden can still do that doesn’t depend on an emergency declaration

Every idea that the advocacy group Evergreen Action proposes is a regulation that agencies can pass without Congress. The most important rules will tackle pollution economy-wide, such as that from the power sector, transportation, and industry. Biden’s EPA is working on new climate rules for coal-fired power plants and has eight other rules to finalize that would also impact pollution from the power sector. The EPA also has regulations tackling truck pollution in the works and still hasn’t approved California’s waiver for setting more aggressive car-pollution standards. The EPA has not yet addressed emissions from heavy industry and buildings, either. And the Interior Department could change its five-year plan to prohibit all new offshore leases.

But even the full power of the executive branch won’t make up for what Congress could have done with $550 billion for climate programs. It’s even more distant from Biden’s campaign hopes of spending $2 trillion on clean energy manufacturing and programs.

A congressional bill was critical for reaching the US goal of slashing pollution in half by 2030. Right now, with no additional action, modelers at Rhodium Group expect the US to cut at most 35 percent of its pollution by 2030.

Congress’s failure means the executive branch has virtually no margin for error. And Biden must face the possibility that the Supreme Court could interfere with his regulations.

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