New Biden Climate Policies May Face Strong Legal Headwinds


Although the United States is rejoining the Paris Agreement, the ability of the Biden administration to discharge its obligations under the pact are heavily circumscribed. Even though Democrats controlled both houses of Congress during the first two years of the Obama presidency, bespoke cap-and-trade legislation stalled in the Senate, forcing the Obama administration to use agency rulemaking instead.

If politics create a forbidding hurdle to any future congressional action on climate, it is paradoxically the science—and the indeterminacy of court-deference doctrines under the Administrative Procedure Act—that could defeat agency action. Under the Administrative Procedure Act, regulations get quashed if they are found to be “arbitrary and capricious.”

To survive challenge in federal court, a regulation must be based on a “record” sound enough to demonstrate that the agency took a “hard look” at all the relevant evidence and came to a reasoned conclusion. Though courts tend to be deferential to an agency’s scientific assessments, it doesn’t take much of a mistake or omission for a court to find that the agency’s “look” was not quite hard enough to pass muster.

Thus the fate of any agency action on climate could come down to which way a federal court decides to load the dice on deference in disposing of the inevitable lawsuits. The Biden administration may not be able to comply with its renewed Paris commitments—even if it wants to.


Global warming caused by anthropogenerated emissions of carbon dioxide (CO2) and other less consequential greenhouse gases is real and observable. But what is more important is the amount of future warming that can be expected. The imprecision of climate forecasts may have something to do with why no significant federal legislation has been passed to restrict emissions. In 2016, the Supreme Court put a stay on the Obama administration’s expansive Clean Power Plan because it lacked legislative backing. When Congress did attempt legislation, the 2009 Waxman-Markey cap-and-trade bill narrowly passed the House but never made it onto the Senate floor, despite a large Democratic plurality. Cap-and-trade largely cost the party 64 House seats and its majority in the 2010 congressional elections.

Read the full article at Real Clear Energy.