Biden is considering invoking considerable powers, but executive actions taken for a ‘climate emergency’ would be unconstitutional.
This commentary was originally published in The Federalist.
The left is pressuring President Joe Biden to declare a climate emergency and his consideration of this declaration is a sign of desperation and weakness. Executive actions taken as a result of a “climate emergency” would die in the U.S. Supreme Court (more on that later).
The reason Biden may declare a climate emergency is simple: His green agenda has stalled. Persistent inflation, led by rising energy costs, and a nation likely in recession, has reduced the likelihood that a narrowly divided Congress will approve the application of additional environmental leaches to an anemic economy.
It appears green dreams are the ultimate First World luxury good — it’s all fun and games until the average family shells out $5,000 a year more for gas, food, electricity, and rent.
Yet the left demands more. Elected representatives are a roadblock. The people don’t know what’s best for them. The Vanguard of the Proletariat have met and decided that if Congress won’t act, then an array of administrative acronyms led by the dogmatic theoreticians of the White House — none of whom who have run a business — will.
The powers Biden is considering invoking are considerable, though none of them were intended by Congress to do what administration is preparing to do.
Even a short summary is terrifyingly breathtaking in ambition and disingenuous creativity.
In March, the Securities and Exchange Commission (SEC) proposed a rule to require “climate-related disclosures for investors.” This rule, if finalized, would deal further hammer blows to the domestic oil and gas industry — just after Biden was forced to go hat in hand to Saudi Arabia to beg Crown Prince Mohammed bin Salman for more oil. It would do that by requiring publicly traded companies to detail their greenhouse gas emissions, including those of their suppliers, whether they are publicly traded or not. In other words, privately held firms, family-owned companies, and individual proprietorships would be burdened with costly reporting requirements, causing more money to be put into paperwork and less money to be put into productive activity.
Next, just because the Supreme Court rolled back regulatory power in June’s West Virginia v. Environmental Protection Agency (EPA) decision doesn’t mean that the EPA won’t still be used to achieve climate goals in ways Congress never authorized. For instance, it’s expected that the EPA will issue new particulate thresholds that would have the practical effect of regulating all combustion for energy and transportation purposes. Particulates are small particles that, in today’s era of clean air, are mostly generated by farming, wildfires, and construction activities — modern combustion is remarkably clean. However, because ambient levels of particulates are very hard to push below a certain level, there will always be an excuse to squeeze for more until every vehicle powered by hydrocarbons is removed from the road or curbed by fees. Put another way, it’s a war on using hydrocarbons to make energy or power vehicles.
Misuse of the Law
The declaration of a climate emergency would also embolden the Biden administration to invoke Section 202 of the Federal Power Act. This law, clearly intended by Congress to be used only in time of war or an emergency due to an increased demand for electricity or a shortage of electricity, will be used to shift electrical power from regions that have responsibly planned for their power needs to states that have gone green and, as a result, have made their grids vulnerable to the vicissitudes of weather. This means that the federal government could literally divert power contracted for by Arizona and shift it to California — a version of this happened a year ago. Essentially, a maximalist use of Section 202 will allow leftwing Biden appointees to turn the power off wherever they choose — all for environmental justice and the planet, of course.
Finally, Biden’s environmental zealots are looking to the Defense Production Act (DPA) to commandeer any part of the economy they feel should be drafted into the fight against climate change. Former President Donald Trump used the DPA to order 3M to produce N95 masks and General Motors to produce ventilators for the federal government. Biden invoked it for Covid-19 purposes as well and then improbably expanded its use to (try to) address the baby formula shortage. With the DPA now unleashed for decidedly non-war applications, the ability to muck with all aspects of the economy for the “climate emergency” are endless.
Administrative State in Retreat
Fortunately, due to the unlikely success of the duo of Trump and Sen. Mitch McConnell (R-Ky.), the federal bench was well-provisioned with constitutionally minded jurists. As a result, the unbridled powers of the administrative state have been in retreat.
Former six-term Indiana Republican Congressman John Hostettler, vice president of federal affairs with the Texas Public Policy Foundation, observes that, “Justice Alito’s concurrence in Gundy v. United States was a clear signal that he is willing to put an end to the administrative state if the right case comes before the Supreme Court. And the left knows it.”
Hostettler was referring to Justice Samuel Alito’s 2019 opinion, which was characterized by his colleague, Justice Neil Gorsuch, as “not join[ing] either the [court] plurality’s constitutional or statutory analysis,” In it, Alito stated:
The Constitution confers on Congress certain “legislative [p]owers,” Art. I, §1, and does not permit Congress to delegate them to another branch of the Government…. Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards….
If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.
Moreover, Hostettler maintains, “Given the addition of the likely votes of Justices [Brett] Kavanaugh and [Amy Coney] Barrett, there’s even more cause for optimism that the High Court is likely to do what Congress seems unable to accomplish. That optimism was bolstered with the outcome in West Virginia v. EPA. Although West Virginia wasn’t the nondelegation case that Alito’s previous pronouncement called for, it’s close enough to stiffen the resolve of Constitutionalists to come up with the right case so that the Court’s majority can further cement its direction on the ‘major question’ doctrine — the concept that if an agency seeks to regulate on a ‘major question’ the statute must clearly grant that express authority.”
For this reason, Hostettler is confident that the Biden administration’s climate emergency overreach would “do to the expansive power of the administrative state what Dobbs did to Roe v. Wade.”
In war there are casualties — and Biden’s climate war threatens to claim the once-mighty power of unelected bureaucrats and left-wing appointees to rule our lives without our votes.