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The Biden Administration’s Emerging
The Biden Administration’s Emerging Environmental Overreach:
By: Chris Horner (Attorney and Member of the Board of Directors, Government Accountability & Oversight, P.C.)
Amid an “Earth Day” lineup of sometimes curious political events, President Biden unilaterally pledged to double the United States’ climate promises under the doomed Paris Agreement, to which he recently re-committed the U.S. by using his pen-and-phone.
This vow of massive emissions reductions came even as data showed that the economic lockdown of 2020, to which the U.S. contributed the greatest reductions globally, left us still not yet on track to meet President Obama’s first 2016 five-year plan under Paris. Once again, it turns out the government program “just wasn’t big enough” for it to really work.
Putting aside the glaring, if neglected, concerns inherent in such unilateral commitments by a U.S. president, consider the implications of knowing that the self-harm imposed in the name of fighting COVID-19 was not nearly enough. Biden’s plan makes lockdown-size contractions a required annual pursuit, not something to merely resume but to repeat and compound it annually, year over year.
The administration offered little comfort when it also subtly admitted the harm this plan will cause by threatening trade sanctions against other countries who choose not to also do this to themselves.
So, although this agenda supposedly will unleash an economic boom, it is unfair to us if the rest of the world does not participate? An April Financial Times headline helps sort through the obvious contradiction: “EU Industry Calls for Urgent Carbon Border Tax as Prices Soar.” Apparently, GHG rationing regulations in Europe, which is much further down this regulatory path, “are a gift to rivals, say companies.”
Little noticed are the President’s confessions, which partly take the form of massive new spending, or “investments,” that the technology to meet the law does not exist.
There should be no doubt in the oil and gas community whether the Biden administration is coming after it, and in a way that will make the previous campaign, including the “war on coal,” appear measured.
As Politico reported on the “Biden’s climate all-star” team of policy sages, “their goal is decarbonizing the country. Jane Flegal, the senior director for industrial emissions at the White House Council on Environmental Quality, says, “The assumption is that climate isn’t just aligned with the economic agenda, it is the economic agenda.” This is somehow the case even though every 2020 U.S. Senate sponsor of the Green New Deal boldly voted “present” when their convictions were put to the test in a Senate vote. Some jobs, it seems, are worth protecting — namely, their own.
Clearly, what the administration has shown it lacks in restraint on the climate agenda it makes up for in brazenness.
For example, this unprecedented subservience of economic well-being to political demands will proceed with little input from Congress outside of approving more spending. The actual restrictions to bind the U.S. economy to an agenda which no Congress has ever endorsed, and plainly will not endorse any time soon, are going to come through regulatory backdoors and a troubling use of the Department of Justice to target opponents.
Regarding the former, one threat uncovered by chance in an open records request contains the worst elements of Washington: bureaucrats cycling in and out of office, collusion with ideological activists and, when democracy slams the front door shut, they seek out and find a backdoor “sue-and-settle” resolution.
What’s now clear is that their proposed method of circumventing Congress is an exceptionally complex, hidden regulatory scheme, though air-quality experts in the shale industries might see through the smoke and mirrors. What Biden’s people hatched prior to his election is a secondary National Ambient Air Quality Standard (NAAQS) for ozone, “robust” enough to serve as a regime for reducing greenhouse gas emissions. Rather than applying the law, it invents an aspirational way around the law.
This effectively requires setting an acceptable U.S. level of this globally “well-mixed” gas, of which China is far and away the largest emitter, and the U.S. a marginal contributor when considering nature’s own bounty.
We can’t control CO2 concentrations or meet CO2 or GHG NAAQS — even where requiring it is deemed legal. We can, however, do great harm to the economy, communities and people by pretending we can by fundamentally transforming the Clean Air Act into an unrecognizable and never-intended framework for economy-wide decarbonization.
Naturally, the plan to exclude the people’s voice and enable governmental overreach came about because of past legislative and judicial rejections. Public records recently uncovered show it was developed over months between progressive state attorneys general and former career U.S. EPA attorneys, and other staff, now turned environmental activists.
This was first revealed in records obtained from the attorneys general (AGs) by Energy Policy Advocates. For the group, I filed an amicus curiae brief in the D.C. Circuit federal court of appeals, laying these facts out in a lawsuit filed by these AGs the day before Biden’s inauguration, State of New York et al. v. Environmental Protection Agency, et al. Among the points made: Biden’s EPA official in
charge just spent two years plotting with these AGs who have sued to bring this agenda into existence, and now he is in position to roll over and concede it into place.
A Wall Street Journal editorial, “Biden’s ‘Backdoor’ Climate Plan,” captured the revelations: “To sum up, Democratic AGs, green groups and a top Biden environmental regulator are colluding on a plan to impose the Green New Deal on states through a back regulatory door because they know they can’t pass it through the front in Congress.”
When rumors that a similar greenhouse gas or “climate” NAAQS was in the offing arose early in the Obama-Biden administration, then-EPA Administrator Lisa Jackson publicly disclaimed the idea as not “advisable.” One prominent environmentalist group attorney, also seeking to quell controversy over the prospect early in the Obama administration, said, “hell will freeze over before there’s a NAAQS for CO2.”
And so, they recognized the considerable political risk which explains such complicated legal maneuvering to sneak an economic transformation into the regulatory shadows.
This agenda has not grown in popularity since the last sincere attempt to impose it through the front door, the doomed 2009 “cap and trade” legislation, which members of Congress made Nancy Pelosi promise in 2019 not to revive. The same fear was shown in shutting down bicameral 2020 efforts to force votes on Green New Deal bills.
Consider also how, after the failure of the Kyoto treaty, the Paris Agreement was simply declared “not a treaty” so as to avoid a Senate vote. The rational conclusion to be drawn from these debacles is that the American people know what they do and do not want, and what they did, and did not vote for. Democrats instead concluded they needed to find back doors for their agenda.
The second Biden approach, using the courts, derives from an unambiguous promise to weaponize DoJ: “Biden will instruct the Attorney General to” do various things to impose a political agenda or target opponents, including, “strategically support ongoing plaintiff-driven climate litigation against polluters.”
This, of course, refers to an expanding litigation campaign by activists and the tort bar to force the progressive’s “climate” agenda on the country and enrich themselves — while also finding a “sustainable funding stream” and “new streams of revenue” for progressive spending ambitions — through what are in effect taxes paid by consumers, run through massive settlements with energy companies.
The plaintiffs’ team regularly admits that this is an attempt to use the courts as substitute policymakers for an agenda that keeps failing through the democratic process.
Biden and Harris both walked back that vow, one (scandalous) half of a two-part promise, at the first confrontation with media curiosity. CNN reported Biden said in an interview, “I’m not going to be telling them what they have to do and don’t have to do. I’m not going to be saying, ‘Go prosecute A, B or C.’ I’m not going to be telling them. That’s not the role. It’s not my Justice Department; it’s the people’s Justice Department.” Harris echoed the sentiment of Biden’s remarks on the Department of Justice. “We will not tell the Justice Department how to do its job,” Harris said.
We shall see. In late April, Biden’s DoJ announced the first component of the promised program. Is the threatened second half coming, too? DOJ has a $28 billion annual budget at its disposal to pursue things that might please their boss.
A dramatic reset of the American economy merits scrutiny and, importantly, public consent. It is antithetical to the American system of government to allow parties to collude behind the scenes to transform our economy or use government prosecutions to bully opponents into acquiescence. A fleeting moment of radical government cannot be allowed to condemn Americans to years of energy rationing and brakes on economic recovery that will only be reversed after needless suffering, which may also include the loss of the U.S.’s position as the leading power in the world.
These actions provide troubling clues as to the extent of the emerging Biden administration overreach on or at least invoking as a rationale environmental matters. While the tactics are disturbing, the breadth of the agenda and zealousness of the commitment indicates that this is likely only the beginning.
About the author: Chris Horner is an attorney in Washington, D.C., New York Times bestselling author of four books, longtime think tank fellow and member of the Board of Directors of the public interest law firm Government Accountability & Oversight, P.C. He has written in the Wall Street Journal, Washington Times, WSJ Letters, New York Times’ Room for Debate, National Review Online, Spain’s Actualidad Economica and the Brussels legislative news magazine EU Reporter.
