Climate policy has come to this: What will President Joe Biden do, and when and how will he do it?

“President Biden both delighted and, to some extent, surprised me, at least, by how quickly he came out of the box with a set of serious proposals for what to do,” said Mary Nichols, distinguished visiting fellow at the Center on Global Energy Policy of Columbia University’s School of International and Public Affairs (SIPA). “But to the extent that those proposals are dependent on actions by Congress, I think we’re going to be disappointed and we already are seeing the resistance cropping up.”

The president’s infrastructure plan is mired in negotiations on Capitol Hill and the struggle to achieve bipartisan agreement on the cost, or even the definition of infrastructure, is what motivates many in Washington to pursue other options.

Nichols understands political resistance. The former chair of the California Air Resources Board, she was at one point considered a lock to be Biden’s pick to lead the U.S. Environmental Protection Agency (EPA). The nomination idea was scrapped more than a month before the president’s inauguration when progressive Democrats objected, citing Nichols’ support for California’s cap-and-trade greenhouse emissions program. The program subjected communities of color to exposure to pollutants at a proportionately higher rate than other communities, activists said, which they contended contradicted the administration’s stated commitment to environmental justice.

The president instead selected Michael Regan, who took over as EPA administrator in March. Nichols may not be a part of the Biden administration, but from her perch in academia, she has definite suggestions for Regan on how his agency should proceed.

‘Unsheathing its Sword’

“EPA, with direction from the White House and at the request of the secretary of state or the president or both, should be usingunsheathing its swordwhich is section 115 of the Clean Air Act, which provides that EPA can basically require the states to develop plans to reduce emissions, both for the transportation sector and from the electricity, stationary source sectors, based on findings that we’re contributing to a pollution problem in other countries, which, of course, we are,” she said during a May 20 webinar hosted by Columbia.

Nichols was referring to the international air pollution section of the act, which she believes has never been given the attention it deserves from policy makers as a way to move climate policy forward.

“I believe invoking section 115 and seriously taking advantage of the latitude that it gives EPA to craft solutions is something that needs to be on the table and we need to see it moving if only to inspire Congress to take action to do something themselves,” she said. “If they don’t like it, they can do better. And they probably could do better, at least something more targeted and quick. But as we all know, targeted and quick are not attributes that we can really look to right now coming from leadership on the Hill.”

The language in section 115 does not limit EPA to regulating a particular type of pollution or industrial sector, argued a 2016 article by environmental law scholars. Quite the opposite: the provision grants EPA and the states broad latitude to address international air pollution.

“Notably, EPA and the states could use the provision to establish an economy-wide, cross-sectoral [greenhouse gas] emissions trading program that incorporates both stationary and mobile sources,” the authors said. “In so doing, section 115 could provide one of the most effective and efficient means for addressing climate change pollution in the United States.”

Regulating emissions is legally defensible because the very purpose of the section is to enable the U.S. to cooperate more effectively with other countries in addressing air pollution problems. Implementation issues would be “complex, but manageable,” the scholars wrote.

“Ultimately, regulation of GHG emissions under section 115 would provide EPA with the opportunity to develop a comprehensive, market-based, nationwide platform that would increase the scope of emissions covered, streamline administrative efforts, and maximize market efficiencies,” the authors wrote.

‘Look Elsewhere’

Of course, the section would not need to be “unsheathed” if its applicability in regulating greenhouse gas emissions were unquestioned. That is not the case.

“Every couple of years, someone rediscovers section 115 of the Clean Air Act and announces that it can be used to reduce U.S. greenhouse gas emissions (“GHGs”) in a new and comprehensive way,” David Bailey and David Bookbinder of the Niskanen Center wrote. “But using §115 in that way would give EPA completely unconstrained power that we do not think Congress ever intended, and that the courts would never uphold.”

Bailey and Bookbinder do not oppose such regulation, per se, just this approach.

“We share the authors’ apparent frustration with both the utter failure of Congress to address the issue, and the glacial pace and complexity of EPA regulation,” they wrote before concluding with: “That §115 keeps coming up shows that there is strong demand for better climate policy in the U.S. But the challenges in using §115 (both Congressional intent and what we’ve already seen from the courts) to regulate GHGs make any successful outcome practically impossible. Look elsewhere.”

‘You Have to be Bold’

That reasoning was reflected in the approach of Cheryl LaFleur, also a distinguished visiting fellow at Columbia SIPA and former commissioner and chairman of the Federal Energy Regulatory Commission (FERC).

“I believe there are other cases where agencies have stretched their authority in which they were using laws that maybe were put in place for a different purpose,” LaFleur said during the webinar. “They always risk whether they are going to be tripped by a court because agencies are working so hard to use the laws they have to what they’re trying to do.” 

But Nichols and fellow panelist Frances Beinecke, former president of the Natural Resources Defense Council, don’t believe this is the time to hold back.

“I think you have to be bold and take action,” Beinecke said during the webinar. “We’ve all been in the courts, one way or another, and you have to risk that and believe that your case is strong enough, that you’re going to prevail even though you anticipate that you’ll end up in court. I think that we should go forward with the tools that we have.”

The tools only come into play if the administration and Congress fail to agree on a legislative solution.

“We all believe that if we can get legislation that wrapped all these things up, that would be preferable,” Beinecke said. “We’re certainly making that effort but we don’t know that we’re going to get there so we have to look at other authorities, as well, absolutely.”