To go directly to our Climate Change report introduction and the links to its sections click here.
To go directly to our Public Health and the Environment report introduction and the links to its sections click here.
To go directly to our Environmental Justice and Equity Introduction and the link to this report click here.
introduction
The Biden administration has prioritized progress on climate change, public health and the environment, and environmental justice more than any previous administration. In this series of reports, we assess the administration’s record so far and discuss additional opportunities for the president to continue advancing these goals through legally durable actions. As we approach the two-year mark of the administration, this is an analysis of what the administration has accomplished, how legally resilient the progress is, and what to look for in the coming years.
We describe the progress agencies have already made or are working on, as well as anticipated future actions. We also explore factors agencies must consider as they aim to achieve the administration’s climate, public health, and environmental justice objectives. Notably, the Inflation Reduction Act, passed by Congress on August 12, 2022, directs funding and tax incentives for clean energy and equity-centered environmental investments. The IRA will affect the Biden administration’s ongoing regulatory actions by changing the cost and technology baseline for rulemakings, and as it brings down the cost of clean technologies, agencies can design rules that are both more ambitious and legally resilient. This additional short review highlights how the IRA and two other bills the 117th Congress has passed—the 2021 Infrastructure Investment and Jobs Act and the CHIPS and Science Act—could collectively strengthen the basis for agencies’ regulatory actions.
Findings
The Biden administration has made significant progress proposing and finalizing rules that address climate change, public health and the environment, and environmental justice. Agencies are now developing additional rules, including new requirements for power plant greenhouse gas emissions.
Key Biden administration actions to date include:
- Finalizing rules setting clean car standards and the phasing down hydrofluorocarbons;
- Proposing rules setting methane emissions limits for oil and natural gas facilities, requiring corporate disclosure requirements about climate risks relevant to investors, and rules to facilitate clean energy deployment;
- Defending its regulatory authority to issue greenhouse gas rules for power plants and use the social cost of greenhouse gases in rulemakings; and
- Using agencies’ discretionary authority over federal funding, policy, and enforcement decisions to comply with President Biden’s orders addressing environmental justice and equity.
Mitigating the Risk of Legal Challenges
Because the agencies implementing these priorities face many legal hurdles, including the possibility that courts may block or delay action, it is important for them to build strong regulatory records. Grounding rules in existing market and investment trends, using robust data on technology cost and availability, and relying on rigorous economic analyses and successful state policies all help to strengthen federal rules.
The Biden administration has approached rulemaking methodically to ensure that agency rules have the best chance of withstanding legal challenges, and to ensure they are implementable, effective, and lasting. While progress may seem slow, developing a strong regulatory record through the notice and comment process takes time. We saw in the Trump administration that courts can strike down poorly constructed, rapidly promulgated rules for Administrative Procedure Act violations.
Even when agencies build strong regulatory records consistent with statutory language and precedent, they are still vulnerable to legal challenge—increasingly, courts are stepping in to constrain agency regulatory authority. For example, federal courts temporarily blocked significant aspects of the Biden administration’s climate agenda, including its adoption of an interim social cost of carbon. The Supreme Court’s decision in West Virginia v. EPA embraced the major questions doctrine, which may discourage agencies from adopting rules a court might deem novel or “significant.”
The Role of State and Corporate Actions
While this report is focused on federal rules, it is worth mentioning that state policies and corporate actions establish a baseline against which federal agencies regulate, so progress at the state level and in the private sector remains an important driver of emissions reductions. US greenhouse gas emissions are falling in part due to state clean energy policies, corporate renewable energy use, consumer adoption of more efficient vehicles, and new industrial technologies and practices.
States often are responsible for implementing federal climate, energy, and environmental policies and they play a major role in disbursing federal funds, including under the Inflation Reduction Act and the 2021 Infrastructure Investment and Jobs Act. State discretion over the investment of federal funds will influence the environmental and equity impacts of both new and existing clean energy programs.
By demonstrating that clean energy is technologically and economically feasible, the actions by corporations and states allow federal agencies to adopt more stringent rules grounded in best practices. Such investments play a critical role in supporting the legal record for regulations and serve as a backstop to potential future rollbacks.
Looking Ahead
As the Biden administration continues to pursue its agenda, there are additional opportunities to promulgate rules to reduce greenhouse gas emissions, make progress addressing air quality and water pollution, and drive investment in infrastructure to support clean energy deployment. In anticipation of future litigation based on the major questions doctrine and other challenges, we expect the administration to pursue incremental steps in these rulemakings, and to ground their decisions in clear statutory authority consistent with past practice, bolstered by strong supporting records.
In this series of reports, we explain how federal agencies are addressing climate change, public health and environmental concerns as well as environmental justice and equity. These reports complement our Regulatory and Environmental Justice trackers by assessing how those agencies can take steps toward durable change. In a separate table we list the administration’s environmental justice commitments, and report on progress made.
We will continue to track the administration’s progress on our website.
Climate Change
President Biden has prioritized regulatory actions to address climate change since his first day in office. His day-one executive actions prompted work within federal agencies from reviewing, revising, and rescinding rules, to designing new polices to achieve the administration’s goals. In rejoining the Paris Agreement, President Biden announced a commitment to reduce national greenhouse emissions 50 to 52 percent from 2005 levels by 2030. Meeting this target will require a combination of regulatory and legislative steps as well as investment decisions by corporations, which can be accelerated through incentives and federal funding.
In these sections we focus on the three largest sources of greenhouse gases—power, oil and natural gas, and transportation, and we explore the administration’s efforts on international negotiations, federal rulemakings, resilience investments, and financial regulations of climate-related disclosures.
Public Health and the Environment
On his first day in office, President Biden announced a series of actions to “promote and protect our public health and the environment,” alongside actions to empower workers and communities, and conserve national treasures and monuments. Most of those actions depend on EPA’s regulatory authority. The executive orders also required the administration to review several Trump-era regulations that weakened pollution standards or sought to permanently restrict the agency’s authority to impose health-based pollution standards.
In these sections, we analyze the administration’s efforts to update regulations fundamental to safeguarding public health and the environment, and the durability of those efforts. Specifically, we discuss EPA rules addressing criteria and hazardous air pollutants from the power sector, (including National Ambient Air Quality Standards, the Air Transport Rules, Mercury and Air Toxics Standards, and the Coal Ash rule), and EPA’s jurisdiction to regulate water pollution. We also discuss the Biden administration’s revocation or revision of Trump-era rules designed to weaken or constrain agencies’ authority to account for the public health impacts of federal action, including EPA’s so-called secret science rule and cost-benefit rule under the Clean Air Act, as well as Council on Environmental Quality’s rules implementing the National Environmental Policy Act.
Accounting for Health and Environmental Impacts in Agency Decision Making
Environmental Justice and Equity
More than any previous administration, the Biden team has prioritized environmental justice (EJ) and equity at the highest levels of government. With the exception of the EJ-related provisions in the recently passed Inflation Reduction Act, the administration’s EJ strategy relies on discretionary authorities, including federal investment, policy and rulemaking, and enforcement. (Click here for our Environmental Justice Executive Order Mandates and Progress Made table.) While this means the administrations EJ programs can be implemented relatively quickly, it also means another administration can immediately stop, revoke, or defund these programs, and that communities have no legal enforcement mechanism to compel action on these priorities when the White House or agencies miss self-imposed deadlines, as compared to citizen suits available under environmental statutes like the Clean Air Act.
Click here for the Environmental Justice and Equity report.
[1] S. 872, 117th Cong. (2022); H.R. 2021, 117th Cong. (2022).
[2] Environmental Justice For All Act, H.R.2021, 117th Cong. (2022), https://www.congress.gov/bill/117th-congress/house-bill/2021/all-actions-without-amendments (last visited Aug. 22, 2022) [https://perma.cc/MGA7-3W6Z].