Bold But Realistic Climate Actions
Here’s what a new President could actually do.
What options are available to a new President taking office in 2021? Let’s assume a favorable scenario for climate action in which Dems take unified control of the government (White House, Senate, House) in 2021. What then?
The first theme to keep in mind is that the Democrats will still be subject to some significant constraint. Any Democratic margin in the Senate is likely to be thin. Moreover, the conservative majority on the Supreme Court seems hostile to efforts at bold regulatory actions by the executive branch. The most obvious steps are to undo the harm done by Trump, repealing rollbacks, rejoining the Paris Agreement, and rebuilding agencies like EPA that he’s trashed. Taking all that into account, hare some possible options:
1. A national severance tax. This nationwide tax would be assessed at the time of production (on private or public lands) or import into the United States, based on a percentage of market value. To the extent that the result is to reduce the production and import of fossil fuels, this would be similar to a carbon tax. To sweeten the deal, states might be given the option of collecting the tax themselves, in addition to their own severance taxes, or at least a percentage might go to the states. Because this is a revenue measure, it should qualify for the Senate’s reconciliation process, eliminating the possibility of a filibuster.
2. Green spending. Even the least liberal Democratic Senators probably don’t object to spending a lot of money in their states. In the end, the single most lasting impact of the Obama Administration may have been the use of stimulus funding to support renewable energy. Let’s do it again. This could be funded through the federal severance tax or repealing some of Trump’s tax cuts for the rich — or like those tax cuts themselves, through deficit spending. The money could go to support new energy infrastructure, research on batteries and other carbon reduction technologies, public transportation, investments in the smart grid, and energy efficiency upgrades. If tied to revenue enhancements of some kind, the green spending would qualify for the reconciliation process.
3. Declaring a climate change emergency. If nothing else, this would be a great way to focus public attention on climate change on Day 1. Doing so would bring the U.S. into alignment with many other government institutions, most recently the EU Parliament. As I’ve argued elsewhere, it might also allow the President to use statutory emergency powers to make some real progress in addressing climate change.
4. Flood the regulatory zone. Big regulations provide big targets for courts and PR campaigns. Look what happened to Obama’s Waters of the United States (WOTUS) rule. So don’t do a few big rules. Instead, do lots and lots of smaller rules, addressing pieces of a problem. For instance, there could have been multiple WOTUS rules addressing specific types of issues (coastal wetlands, inland wetlands, small streams, prairie pot-holes, etc.) This could be more time intensive, but to the extent the rules involving similar problems in different settings, it would be possible to mix and match some of the same evidence. Moreover, while doing multiple rules requires more agency time, it also requires industry to spread its resources more thinly. It will be hard for the conservative Supreme Court to intervene against a swarm of regulatory actions.
5. Attack air pollution. There is growing evidence that conventional air pollutants such as PM 2.5 are even more dangerous than previously thought. Fossil fuels are the most important pollution sources. Air quality standards and other pollution control rules should be dramatically strengthened. Strict enforcement of existing regulations would also be useful, especially since issues over enforcement priorities can’t be reviewed by the courts. No regulatory violations of any kind by fossil fuel plants or producers should be tolerated.
6. Unleash state and corporate sustainability efforts. Obviously, a new President should grant California’s waiver to regulate greenhouse gases from vehicles. Agencies should also include anti-preemption language in new regulations, reversing a trick used by the Bush Administration against pro-regulatory states. Any new green funding should include hefty grants to willing states to push ahead on decarbonization. DOJ should issue guidelines authorizing environmental cooperation between corporations and joint efforts involving corporations and state governments, in order to provide comfort about any possible antitrust issue. FERC should make it clear that state support for renewables, rather than being a market distortion, actually corrects a market distortion: the implicit subsidy to fossil fuel plants that do not have to pay for their global impacts.
These steps aren’t as dramatic as the Green New Deal, but they’re much more realistic. Although they won’t be easy to accomplish, they will give U.S. climate policy a strong jolt in the right direction.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more