Mounting delays threaten to undercut President Biden’s climate agenda, worrying activists and lawmakers who say the president might miss a narrow window to make vital progress on the nation’s ambitious goals.
Experts project that the recently signed Inflation Reduction Act will help the president’s cause considerably — cutting U.S. greenhouse gas emissions by up to 42 percent by the end of the decade compared to 2005 levels. But further actions will be needed to meet America’s pledge to cut its total emissions in half by 2030, analysts said. These include more restrictions on coal-fired power and tailpipe emissions, and higher efficiency standards on heavy industry and home appliances.
“It is imperative to get them done as soon as possible,” said Christine Todd Whitman, a Republican who led the Environmental Protection Agency during George W. Bush’s first term. “It’s not a quick process. We’re falling behind very fast on our ability to slow things down and have an impact.”
A convergence of obstacles is contributing to the delays, including staff shortages and concerns that federal courts could reverse any ambitious climate rules.
In an update to its public regulatory agenda published earlier this month, the administration pushed back its self-imposed deadlines on several new rules. The EPA noted it was “considering the implications” of a Supreme Court ruling in June limiting how much executive branch agencies can act without explicit authority from Congress, in crafting new rules to limit greenhouse-gas emissions from power plants.
The case, West Virginia v. EPA, has left other options for the agency.
Legal experts say it made it clear that the agency still has the power under parts of the Clean Air Act to limit conventional pollutants from operations directly on-site at these plants. And environmental groups have pushed the agency to use a wave of updates under long-established rules that would reduce that pollution, but also likely lower greenhouse gas emissions as a byproduct, in addition to creating a new rule that targets power-plant greenhouse-gas emissions directly.
EPA Administrator Michael Regan signaled last year he planned to do just that. Those plans included a suite of new proposals for the power sector, which Biden aims to make carbon-neutral by 2035, that were initially supposed to rollout in 2022.
The agency has promised stricter standards on mercury and other toxic pollutants, restrictions on wastewater from power plants and rules to reduce haze, among other regulations in what the administrator said would be a comprehensive overhaul of regulations for the power industry.
But even now many of those changes are languishing. The agency took its first, preliminary step toward new mercury rules in January 2022. The move was supposed to be complete in the summer, but according to the Office of Information and Regulatory Affairs, it went for interagency review only in late December, meaning final action is still weeks or months away.
Speaking at an event at the think tank Resources for the Future on Wednesday, EPA Deputy Administrator Janet McCabe argued that enduring rule changes take time to vet and finalize.
“Regulations, if you do them right, if you base them on science and evidence, if you get people’s input, if you make sure you’re following the law, they take a while to develop and get out into the world,” McCabe said. “So you’re going to see a lot of progress on our regulatory agenda in 2023.”
Late Wednesday, White House spokesman Abdullah Hasan had this to add: “President Biden has done more than any president in U.S. history to tackle the climate crisis, and has no intention of slowing down now.”
Lobbyists say there are signs that the wave of new rules is starting to come. The EPA in early January released a proposal for tightening soot rules for the first time in more than a decade — reversing a 2020 decision against it. It is the type of requirement that will heavily affect power plants and require the type of controls that are also likely to reduce greenhouse gas emissions.
“All these things are about carbon emissions. But (EPA) will never say it’s about carbon emissions,” said Rich Gold, a Democratic lobbyist who leads Holland & Knight’s public policy and regulation group. “This is the smart approach. The Supreme Court may not like it, but there’s nothing they’ll be able to do about it.”
The amount of work, however, is overwhelming staff at the EPA, and other agencies face similar problems, according to administration officials, lawmakers and lobbyists. Many have been shrinking under federal budget cuts pushed by Congress since the Obama administration, and have only slowly rebounded under Biden.
EPA’s workforce fell to less than 14,200 workers in 2018, down from 17,000 just a few years before. The Biden administration has added about 500 new workers since taking power, leaving the force still near the lows dating back to the Reagan administration, according to agency figures.
“Despite depleted staffing levels, persistent funding challenges, and a previous administration that left the agency neglected and scientifically compromised, this Administration has finalized strong, legally durable rules,” Dan Utech, the agency’s chief of staff, said in a statement. “EPA remains committed to using all the tools available to meet the moment and advance President Biden’s bold environmental agenda.”
Staffing problems trickle up to management, for which the Senate has been slow to confirm some political appointees. It recently allowed the term of Federal Energy Regulatory Commission chairman Richard Glick, a Democrat, to expire without ever holding a hearing for his renomination.
Now the independent agency is left with a 2-2 split between Democratic and Republican commissioners. That has some at the White House concerned about gridlock potentially blocking the commission’s plan for new rules on transmission, which the administration sees as key to supporting a wave of new wind and solar power capacity.
Commission officials did not respond to requests for comment.
“We’ve also fallen way behind schedule to get key anti-pollution regulations in place,” Sen. Edward J. Markey (D-Mass.) said. “The Biden administration has to roll up their sleeves and get to work ensuring that every agency — from EPA to OMB — is funded, staffed, and full steam ahead promulgating strong, resilient rules.”
Lawmakers and environmentalists said the administration is already starting to bump up against the time window in which any new rule faces a bigger risk of failure. The less buffer time rule-makings get between competition and a presidential election year, the more the risk grows.
Many environmental rules draw lawsuits that linger for months. If Biden doesn’t win reelection, a new president could pass on defending the new rules in court and ultimately vacate them. They could try to roll them back at the agencies, too.
The biggest threat may be from the Congressional Review Act, which allows lawmakers to scrap any regulation within 60 legislative days of its finalization by a simple majority vote. It would give Republicans a relatively quick way to erase rules they don’t like if they were to take control of both chambers in 2024.
Because many rule changes can take a year or more to complete, that means any proposals that haven’t come yet must come soon, potentially within a few weeks. Many rules that don’t get completed until late 2024 would potentially face revocation under that law.
The administration did score a big victory last year, with Congress agreeing to spend roughly $370 billion to fund the biggest part of the Biden climate agenda, much of it focused on cleaner electricity.
But that spending law gets the country only about halfway to Biden’s goal from the country’s current trajectory, and more aggressive federal and state rules on industry — foremost, fossil-fuel-burning power plants — are required to close the gap, according to research released in December by Energy Innovation, a nonpartisan think tank that provides research to lawmakers.
“If you want to hedge your bets and make sure you make progress … a more sure bet can be regulations,” said John Larsen, a partner with Rhodium Group, another research firm that has done similar analysis. “A lot of the basic economics suggests the power sector is where you have the most opportunity to move the fastest.”
Administration officials say that last year’s climate bill gives them an opportunity to enact even more stringent regulations than they would have otherwise. With businesses getting government funding to help them reduce their pollution, it makes it less expensive to comply with higher standards, raising the bar on what the agency would rule as economically viable.
But that is one more cause for delays, said Christy Goldfuss, chief policy impact officer at the Natural Resources Defense Council. The climate bill’s impact is so dramatic, it would require administrative agencies to redo the required economic analyses that legally justify how much more stringent an administration can make environmental standards, she said. That adds months more legwork to the process.
Some of its most recent estimates, including for new greenhouse-gas limits for power plants, allot more than a year to finalize rule proposals it plans to issue in March and April. Despite the challenges, that process should be faster, no more than 12 months, said David Doniger, senior strategic director of NRDC’s Climate and Clean Energy Program.
Both the group and business advocates for renewable power plan to push the administration to go faster.
Federal bureaucrats at agencies crafting policies “want to make it perfect,” said Jason Grumet, who heads the Bipartisan Policy Center and is slated to become CEO of American Clean Power, a trade association representing renewable energy companies. “This is not going to get the job done in time.”