Biden’s version of Green New Deal moves forward, but executive action has its limits

President Biden is rolling out his environmental and energy policy fast with the use of executive orders. In spite of his claims during his presidential campaign, it is clear that his policy is roughly consonant with Green New Deal; however, there are limits to what he can do with executive action alone. 

Biden’s environment plan and the Green New Deal are remarkably similar. The Green New Deal was released with great fanfare, but it was part wish list and part policy formalized as a House Resolution, a mix of broad energy and environmental goals and social justice aspirations. At its core it calls for the United States to be weaned from hydrocarbon fuels.

Comparing the Green New Deal to the Biden Plan For A Clean Energy Revolution And Environmental Justice, one might think they were written by the same person — with one key difference.

Both the Green New Deal and the Biden Plans call for net-zero emissions by 2050 and a zero-carbon emissions electricity sector by 2035, and that’s not where the similarities end.

• Both plans address transportation with zero-emission vehicles, infrastructure and investment in public transit and rail. Biden places a particular focus on fuel economy, including restoration of the full electric vehicle tax credit;
• Both plans call for building efficiency and resiliency, with Biden setting a goal for reducing the carbon footprint of buildings by 50 percent;
• Both plans require infrastructure investments to consider climate impact and resiliency;
• Both plans seek to move to “low-carbon” manufacturing;
• Both Biden and the Green New Deal have an agriculture component seeking to invest in sustainable farming, but also include improved food access as a social justice component.

The Green New Deal and the Biden Plan part company on carbon capture and storage. Carbon capture is prominent in the Biden Plan but not mentioned in the Green New Deal. Biden wants to accelerate the development and deployment of carbon capture and storage; Green New Deal doesn’t even want to recognize or talk about it. Why? Because some of the more radical elements of the environmental movement consider carbon capture to be a “false hope,” claiming it won’t work and, worse, that it provides a continued license to use hydrocarbon fuels, preventing immediate cessation of their use. Also, they contend carbon capture gives oil companies a ready source of “subsidized” CO2 to be used for further oil extraction.

This dichotomy on carbon capture has important implications in the prospects for national decarbonization. The “never carbon capture” view is not shared by all environmentalists. Many see carbon capture as an important tool. Also, this view is not held by labor unions like the AFL-CIO who support carbon capture for job creation. Union support will be key to implementing any decarbonization policy. There’s some serious cognitive dissonance between the Green New Deal and labor that will have to play out.

But the bigger question is how successful Biden will be in implementing his plan — and how long it might last.

Cancelling the Keystone XL Pipeline and rejoining the Paris Climate Accord were the first environmental executive orders out of the box. We saw more executive orders last Wednesday, declaring climate change a national security priority. Biden has banned new oil and gas leases on federal land and directed the Department of Interior toward offshore wind projects. He created new offices and committees aimed at combatting climate change. He also established a task force to “enable a whole-of-government approach to combating the climate crisis” and created a new “Civilian Climate Corps.”

This flurry of executive orders, though, raises the question of how far Biden can move policy by executive action alone and what the limits and vulnerabilities might be of using executive orders to effectuate policy.

The president has broad authority to issue executive orders under the Constitution.  We can expect at least two types of executive orders aimed at enacting policy: (1) those that effectuate policy directly; and (2) those that order federal administrative agencies to commence the regulatory process.

From a legal academic standpoint an executive order is not bulletproof. If the executive order is contrary to Congressional pronouncements, then the executive order could run afoul of the separation of powers doctrine and be vulnerable to court challenge. An executive order can also exceed presidential authority — like Bill Clinton’s executive order that forbade government contracts with companies that used strike breakers.

In Biden’s case, judicial challenges to his executive orders may be more than academic discussion. Even with Trump out of office, his judges are still presiding.

One of the administration’s first executive actions, the DHS’s 100-day moratorium on deportations, has already been stayed by a Trump-appointed Texas Federal District Court Judge, and a suit has already been filed in Wyoming Federal District Court against the administration’s halt to federal oil and gas leasing. Trump successfully nominated and seated three Supreme Court Justices; 53 Circuit Court judges; and 161 District Court judges. Trump’s judge count is an impressive number: Obama only seated 55 new Circuit Court judges in 8 years. Savvy challengers will look to Circuit Court jurisdictions that are the best for them. For example, Trump appointed three of the 11 active judges on D.C. Circuit.

Another limitation on policymaking by executive order is that such policy is inherently fleeting — it can easily be overturned by one’s successor. In fact, we are seeing right now how fleeting Trump’s policies by executive order were.

Regulatory policymaking, although it takes much longer, is much more permanent than executive order policymaking.

Mike Krancer, a former Secretary of the Pennsylvania Department of Environmental Protection and Chief Judge of the Pennsylvania Environmental Hearing Board, is co-founder of Silent Majority Strategies, a public and regulatory affairs consulting firm that has represents a broad array of interests including a Combined Heat and Power fed urban-based District Energy provider. Follow him on Twitter @MikeKrancer