In the summer of 2019, the presidential campaign of Joe Biden, then merely a milquetoast former vice president, surprised climate change advocates with an ambitious proposal to cut carbon emissions. Biden was suddenly offering much more than tax incentives for green businesses or an expansion of electric car infrastructure. He embraced many of the tenets of the Green New Deal while promising to punish the companies responsible for heavy greenhouse gas emissions; he promised laws against greenhouse gas profligacy that would be enforceable and said he would bring the hammer down on violators. This was greeted with approval from many climate hawks, even if they weren’t convinced he had transformed into AOC overnight. A host of climate-related groups worked hard to bring Democratic voters to the polls in the general election, with the message that whatever their qualms about Biden, he had done enough to earn their support.
The people who were won over by this pledge haven’t forgotten. “We mobilized record youth turnout in 2020 for Joe Biden and Democrats on the promise that Biden would deliver on a bold climate agenda,” Ellen Sciales, a spokesperson for the Sunrise Movement, told me. “If Biden doesn’t follow through on his climate plan, he risks disillusioning young voters and being the president that didn’t do everything he could on climate when he had the chance.”
A key to Biden’s plan was an “enforcement mechanism” for compelling companies to meet emissions-reduction goals. The precise nature of the mechanism wasn’t spelled out in the 2020 campaign or afterward, but the idea would be not only to keep climate progress on track via legal mandates but to “hold polluters accountable for the damage they’ve inflicted on our poorest and most vulnerable communities,” according to a Biden campaign tweet from the primary.
This represented a major departure for a moderate Democrat like Biden. To penalize a company is to use what are known in climate economics as restrictive policies—punishing firms for doing bad things, rather than rewarding them for doing good things. In short, using the stick rather than the carrot. This is what conservatives call “picking winners and losers,” and whatever those conservatives might claim, Democrats haven’t historically liked doing so.
During the primary, Biden’s climate plan got a lot of attention. NBC’s Garrett Haake pointed out that the enforcement mechanism differentiated the plan from that of Beto O’Rourke, and Brian Kahn of Gizmodo’s Earther vertical wrote an article headlined “Joe Biden’s Climate Plan Actually Has Teeth.” Kelly Sims Gallagher, a climate policy expert at Tufts Fletcher School, told Kahn the vagueness of the language around the enforcement mechanism was “notable” and opined that “Biden apparently wants to give Congress the opportunity to shape this mechanism.”
The Sunrise Movement, however, still gave Biden’s plan an “F-” rating in December 2019 and endorsed Bernie Sanders. So as the primary heated up, Biden revamped the plan in order to address the concerns of the base. As he rolled out a new version, he said, “I want young climate activists, young people everywhere, to know: I see you. I hear you. I understand the urgency, and together we can get this done.” His final plan moved the marquee deadline closer to the present—an end to electricity-sector greenhouse gas emissions by 2035 instead of an economy-wide end of greenhouse gas emissions by 2050—but the “enforcement mechanism” that would make this all possible remained mysterious.
When he was elected, this was a fairly powerful example of the scope of Biden’s vision, for better or worse. “An enforcement mechanism to make all people and nations of the earth comply with a green climate change agenda?” asked Andy Roman of a Christian conspiracy blog called Advent Messenger. “That certainly sounds like what is described in the book [of] Revelation 13:12-17.”
But nearly a quarter of the way through his first term, Biden has not heavily promoted any such potential mechanism. The original vision of the Build Back Better Act contained a provision called the Clean Energy Performance Program, or CEPP, and while it ignored emissions from transportation, agriculture, and deforestation, it would have represented a crackdown, albeit a mild one, on greenhouse gases emitted by energy utilities. Enforcement would have taken the form of fees for missing emissions-reduction targets, and they wouldn’t have been extremely harsh fees. In October, Bruce C. Buckheit, formerly the Environmental Protection Agency’s director of air enforcement, wrote a report for Friends of Earth, pointing out the CEPP’s shortcomings, among them a definition of clean energy that included fossil gas and a rather uninspiring necessary reduction in the use of said gas to 2017 levels, rather than zero. The greatest virtue of the CEPP, however, was that Congress could pass it through budget reconciliation, so it didn’t need a filibuster-proof majority to become law.
It’s not clear that the CEPP constituted the entirety of the emissions enforcement mechanism the Biden campaign promised in 2019. But even this half-measure was killed dead in October when West Virginia Senator Joe Manchin successfully negotiated the CEPP—and any sort of carbon tax—out of the BBB Act.
If Biden wants to follow through on his big climate promise, he’ll have to do it without Congress. Anand Gopal, the executive director of strategy and policy for the climate think tank Energy Innovation, talked me through the president’s remaining options, none of which involved legislation. The first is to rely on the EPA to police polluters. Gopal told me the EPA “is strategically crafting regulations to reduce tailpipe emissions and methane leakage, and is working to design all measures so that they can withstand likely legal challenges and potential administration changes in the years ahead.”
The EPA’s ability to enforce past carbon pollution rules is expected soon to be obliterated by the Republican-dominated Supreme Court when it rules on West Virginia v. EPA, a lawsuit challenging the federal government’s ability to regulate greenhouse gases. But it sounds like new rules are being written as if that case is already lost. Biden’s solicitor general told the court that the case “has no continuing practical significance, since that plan is no longer in effect and EPA does not intend to resurrect it.” But of course, a state like West Virginia can sue the EPA all over again when the new rules are announced.
“I’m reasonably confident that regulations at EPA and programs in federal departments will be designed to withstand the conservative tilt of the courts, but it’s hard to anticipate exactly how judges will rule and abide by legal precedents,” Gopal said.
Gopal also suggested that since “the federal government is an enormous consumer [with] massive buying power,” it can put into place requirements that shift the market toward greener options. Procurement programs with rules “requiring equipment and projects to be low- or zero-emission can meaningfully drive the energy transition,” Gopal told me.
To say the least, Biden changing federal procurement rules is a far cry from becoming the climate cop he was touting himself as during the primary. But considering Biden’s unpopularity and the high probability Democrats lose their tenuous control of Congress after the 2022 midterms, it doesn’t seem likely they’ll risk that famously crucial suburban mom vote by wasting their energy duking it out with Manchin over, say, the creation of a new branch of the military called the Climate Force. If the Biden administration miraculously births any sort of climate enforcement mechanism between now and 2025, it’s going to be even less of an interruption of business as usual than the CEPP.
But that’s just a different kind of risk, according to Sciales. “President Biden must use the full force of his office, both persuading lawmakers like Joe Manchin and passing executive actions, to ensure that we hit these clean emission goals,” she said. “Otherwise, he risks greater climate catastrophes, our futures, and the support of young people in 2022 and beyond.”
Lest Biden forget, promising to be America’s climate enforcer was once part of a winning strategy.
