On July 20, 2022, President Biden delivered an address on climate change. Despite heavy pressure by many in Congress and environmental groups to announce new executive actions to address climate change, and even to potentially go as far as declaring a national emergency, the President instead stated only that specific actions would be announced in the coming days and weeks. The President did describe climate change as a “clear and present danger” and an “emergency” but stopped short of declaring a national emergency. Declaration of a national emergency would have unlocked a broader range of executive powers that could be better able to withstand legal challenges, although carry many political and economic risks. For example, one action stemming from a national emergency declaration could be the curtailment of crude oil and LNG exports, which could lower US prices but would be an abandonment of US-allies in Europe who will be in dire need of energy this winter. Other potential actions, such as suspension of off-shore drilling, would likely raise US prices for energy. With mid-term elections a few months away and much angst in the polls regarding inflation and the price of gasoline at the pump, the White House must decide the extent of its actions.
Therefore, at this time we anticipate the coming executive actions to come in the form of discrete, targeted actions to be carried out by individual agencies under non-emergency authorities. In his speech, President Biden said he will clear the way for new offshore wind energy in the Gulf of Mexico and Atlantic Ocean, and will spend $2.3 billion to support communities' defenses against climate change including providing low-income households efficient air conditioners.
While the legal risks will be particular to each specific action, any actions carried out by agencies will be vulnerable to challenges under the Administrative Procedure Act, including legal scrutiny under the ‘major questions doctrine’ recently invoked by the US Supreme Court in West Virginia v EPA, which said that the authority to address major questions, like climate change, needs to be clearly articulated by Congress in order for the executive branch to take action.
We will continue to monitor developments as they arise.
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