Volts podcast: how Biden can address climate change through executive action

In this episode, Jean Su and Maya Golden-Krasner, attorneys at the Center of Biological Diversity, discuss which executive actions President Biden could take to aggressively address climate change, and what might happen if he did so.

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David Roberts

It now seems fairly clear that no climate legislation is going to pass this Congress before the midterm elections. After the midterms, Democrats are highly unlikely to retain control of both houses, so there likely will not be any federal climate legislation in the US for many years to come. This is, obviously, to the country's immense shame.

That means Biden finds himself in the same situation that Obama ended up in: if he wants anything at all to get done on climate change during his term, he's going to have to do it himself, through executive action. He has already begun announcing some executive orders.

However, there is a case to be made that the president has the power to do much, much more. Two senior attorneys at the Center for Biological Diversity — Jean Su, director of CBD’s energy justice program, and Maya Golden-Krasner, deputy director of its Climate Law Institute — have been aggressively making that case for the past three years, laying out a broad suite of actions available to a president and accompanying them with arguments rooting those powers in statutory authority.

They've just released a new report called “The Climate President’s Emergency Powers,” which digs into what it would mean for Biden to declare a state of emergency over climate change and what sort of statutory powers that would grant him.

In this moment of utter legislative failure, I wanted to talk to Su and Golden-Krasner about the kind of things Biden is capable of doing, which actions he ought to prioritize, how he should think about the hostile Supreme Court, and the political optics of governing so aggressively and unilaterally.

Alright. Jean Su and Maya Golden-Krasner of the Center for Biological Diversity. Thanks for coming to Volts.

Maya Golden-Krasner

Thanks for having us.

David Roberts

So there's a lot to discuss, a lot to discuss here. So I just want to start maybe with this sort of background assumption. Let's just assume, for the sake of our conversation, that Build Back Better does not miraculously rise from the ashes and pass in the next, whatever, however much time we have to pass it a week or two. Let's just assume that it's dead dead. That legislation is dead dead. And that, as all odds are pointing to that, all the prognostications now say that Democrats are almost certainly going to lose at least one House of Congress in the midterms, which will mean legislation is dead for the rest of Biden's term.

That leaves us with what Biden can do on his own. This has all happened before, and it will all happen again, as they say on Battlestar Galactica. This was exactly the situation Obama found himself in, as we all remember. So it's a little depressing to be back here, but let's make the best of it. So the other thing I wanted to say, just by way of preparation is I think it's fair to say that you all, that the CBD, has what I would characterize as a sort of maximalist interpretation of Biden's executive powers. Extremely sweeping.

Your 2019 report on the executive powers available to the President. I mean, if you read through that whole thing, I mean, jeez, Biden could just sort of revolutionize all of government, and all of industry, and justice, and there's almost nothing he couldn't do under some legal authority or another. So I might be, throughout this, playing a little bit of devil's advocate, trying to push back a little bit on some of that. So just to let you know. So with all that said, let's start with what seems to be most in the news these days, which is whether or not Biden is going to declare a Climate Emergency.

There's a lot of talk about this, a lot of hand waving, a lot of sort of ... I don't think it's very well understood what exactly means for him to do that and what it would enable him to do. So let's just start there. Maybe we'll start with you, Jean, maybe you can just tell us what does it mean for Biden to declare a Climate Emergency, what is the legal authority under which he would do that, and then we can get into sort of what it would enable him to do that he couldn't otherwise do.

Jean Su

So I think you've painted a really bleak picture of where we are right now.

David Roberts

Look around, Jean.

Jean Su

And it's very real, and this is exactly where we hope we wouldn't be. But it didn't also take a crystal ball to let us know that we would be here, as well. And so I think on that note, one of the things that we have at the Center have always focused on is the executive branch, and that is an equal branch of the three branches. And we've always have looked at what are the available tools for the president, not to the exclusion of anything else.

We absolutely need legislation. I pray that your prediction is not true on legislation, and we hope and pray, best wishes, for that legislation because we need prayers. Thoughts and prayers. So I think one of the things, when people have talked about the Climate Emergency in the last few days, is this fear that it is to the exclusion of everything else. And that is absolutely, from our point of view, not true. We would want every single agency, every single executive power within President Biden's quiver to essentially be utilized.

And this also is not something that we advocate only at this moment in time when legislation is a question mark. It is something that we have always felt every single presidency should begin with, in concert, working as hard as possible because we have truly the emergency of our planet on our hands right now. So every single tool available to us should be at least considered and considered wisely, thoughtfully, with the understanding that we need kind of everything that we can get right now and everything to fight this thing. So giving kind of that overview of our standpoint on all of this. So a Climate Emergency Declaration would have two different uses. On a very broad level, a Climate Emergency Declaration, that's paired with bold actions, would be a clarion call that we need right now for climate leadership.

I think the picture that you painted is absolutely a picture of despair, and that is where so many people are right now. And I think there is a real need for the president to not only acknowledge that we are in a Climate Emergency, but really to seize that mantle of leadership right now and say, "hey, we're in a Climate Emergency, and I am going to do everything in my power to make sure that, within my administration, we combat this as hard as possible. Because it is unacceptable that there are 100 million people in this country right now on high heat alert, that the world is literally burning with 80 wildfires, and that so many communities in this country are experiencing this not just today, but from the fossil fuel economy violence of the past decades."

So that, on a leadership, level is so important to unlock and unleash the momentum of everybody, to put out what they can to fi