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.


(PDF
transcript)


(Active
transcript)


Text transcript:


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
fight this, whether it is state' local governments, as well as
other global leaders. Which is something we can totally talk
about from an international standpoint, and that's a lot of what
we work on as well. Separately, the Climate Emergency Declaration
would potentially unlock emergency powers. Emergency powers are a
whole subset of executive powers that are just part of the
greater suite of executive powers that we have been advocating
for decades, essentially, at the Center.


But to unpack the subset of emergency powers, Maya and I went
through the emergency power statutes, which include four
different statutes: the first is a National Emergencies Act, the
second would be the Defense Production Act, the third is the
Stafford Act, and the fourth is the Public Health and Services
Act.


David Roberts


The "declaration of emergency", itself, is the power to do that
under one of those particular laws. Like what is the authorizing
sort of statute to the declaration, itself?


Jean Su


Yeah, I think when people say, "declaration of a Climate
Emergency," that could be interpreted in different ways, but one
of them is the National Emergencies Act. So under the National
Emergencies Act, the President would declare an emergency, and
that essentially triggers 130 some statutory authorities. But he
has to actually pull something specific when he declares the
emergency if he wants it to actually have some type of action. So
under that framework of 130 so statutory authorities, we've
identified some of the most climate-progressive ones that he
could potentially think about when he would pull the National
Emergencies Act. And so the top ones of that, for us, would be
looking at reinstating the Crude Oil Export Ban, that was
basically overturned after 40 years in 2015. That would be the
equivalent of shuttering 42 coal plants.


David Roberts


To bring in the devil's advocate thing, the sort of traditional,
I think, conventional wisdom here is if you cut off crude exports
from the US, you're going to suppress US production a little bit,
but other countries will just ramp up their production to make it
up. And other countries often have dirtier production than we do,
so wouldn't that reduction in greenhouse gases be a little bit of
an illusion? I mean, wouldn't that just be a reduction of our
greenhouse gases but not overall greenhouse gases? How do you
address that common argument?


Jean Su


Yeah, so that argument has been countered by folks at SEI,
Stockholm Economics Institute, and it's not the case. They find
that if you do shut down oil production here in the United
States, or other parts of the world, it won't necessarily mean
that it will pop up somewhere else. And so the analysis that
we've seen, with the 42 coal plants analysis, takes that into
account, and that's that. So I think the other part of this
though is looking at, I think, that gets into greater supply-side
arguments, which we can totally go into right now because that is
a common break and debate.


David Roberts


A lot of these executive moves you're talking about have to do
with ...


Jean Su


supply-side work.


David Roberts


supply-side, slowing or cutting off either domestic production or
exporting. So might as well get into it now. Why should we think
that the US cutting back on production or exporting would have
this global effect?


Maya Golden-Krasner


Well, first of all, as Jean says, there's been significant
research that shows that ending production or slowing down
production, actually results in a net global reduction of use of
fossil fuels. So it's not actually true that for every barrel
that we stop producing, we import another barrel from somewhere
else, or we need another barrel from somewhere else. That's not
actually how it works. Fossil fuel supply actually helps drive
demand. So from our perspective, climate policy has to address
both. And we've really spent decades trying to reduce fossil
demand, and, really, our policies have focused on that critically
but not supply.


And here we are in today's climate crisis, and it's a policy
failure that we can avoid by reducing supply and demand at the
same time. On top of that, we have enough oil, in our existing
leases right now, to meet demand. And at the same time, there's
already way more fossil fuels under production and planned, and
the fossil fuel industry is planning huge projects going way into
the future, that can safely be burned to stay under 1.5 degrees
Celsius.


David Roberts


Yes, this is a crucial background fact. I just want to put an
exclamation point next to it. I feel like listeners to this
podcast probably know this by now, but at this point, it's been
analyzed up and down a million ways. If current oil and gas
fields produce to their capacity, we're going to shoot past 1.5,
never mind exploiting new oil and gas fields, right? So when it
comes to oil and gas, there's no margin left, really.


Maya Golden-Krasner


Exactly. So climate science is showing us that 40% of already
producing deposits have to stay in the ground to avoid the
catastrophes of 1.5, just as you said. But at the same time,
we've got fossil fuel companies who, there's a new study out
showing they make $3 billion a day and pure profit. And so
they're looking at undeveloped reserves of up to, according to
the study, $100 trillion. And so they're not giving up. They're
going to push, and push, and push, and push. So we we can't
ignore that they've got money to, you know, buy politicians, to
file lawsuits. They're constantly pushing and pushing. And so our
climate policy can't just focus on renewables, without pushing
back on what the fossil fuel industry is doing.


David Roberts


But let me toss in here, and we're getting ahead of ourselves
again into the international stuff, but it seems notable that
there are other sort of analogous wealthy democracies, like
Norway or whatever, that are doing a lot on climate change, on
the demand-side, but they aren't particularly cutting back on
production. Would we be the first to really grab onto this? Or is
there an example of another country that is attacking both demand
and supply?


Jean Su


Yeah, so there's a new — I think you've nailed whatever the
expression is. But that is essentially the problem that we face,
right? There are hypocritical policies. Saudi Arabia actually
exports a ton of their oil because they profiteer more from that
and also are electrifying themselves using solar.


David Roberts


You say it's hypocritical, but it's the standard. I mean, that's
the standard among oil and gas-producing countries.


Jean Su


Absolutely. And it is the standard that has gotten us to the
Climate Emergency and the climate catastrophe that we are here
right now. The US has an "exceptionalism" reputation, that it
feels and fuels itself with. And I think we have been so furious
at urging these movers, and these oil and gas producers, to
change their tune. We absolutely have to because that is what
science is telling us to do.


And so, yes. Would the US be one of the first to do it?
Absolutely. Would that be a game changer and a signal to the rest
of the world? Absolutely. Is that what we need to actually keep
our emissions down? Absolutely. And so these are the hard choices
that need to be made in a political atmosphere where fossil fuel
companies really have such deep, deep influence on every single
part of our government in these choices.


Maya Golden-Krasner


There's no world in which we are safe, in which the US continues
to produce oil, and then it exports it like the other, like
Australia. We can't continue to extract fossil fuels and send it
away to be burned elsewhere or to be turned into petrochemicals
or plastics, which are very toxic processes, themselves, that
also pollute the planet.


David Roberts


Well I mean the conventional wisdom, the conventional approach,
is just all the countries of the world join hands and reduce
their demand in concert, and that is what ends up reducing supply
because there's no demand for the supply. You just don't buy that
model.


Jean Su


Well, I mean, we've been going to the Climate Change Negotiations
for the last 17 years, and that was the initial idea about the
treaty right now. When the Paris Agreement, and all of its
predecessors, were crafted, none of them had the word fossil
fuels in them, and that is purposeful. It is purposeful that all
of those "climate change cops" have been sponsored by fossil fuel
companies. It was only last year, for the first time, that we
finally got fossil fuels into the decision that came out of last
year, and that is after decades of this type of agreement system.


But one thing I did want to get back to you Dave is that there is
a new alliance called the Beyond Oil and Gas Alliance, and this
actually is set up to get first movers on their way. It is led by
Costa Rica and Denmark. So small countries, but these are
countries actually trying to deal with both supply and demand at
the same time. And they are pushing different states, like
California, et cetera, to basically get on that same train. And
that's the type of leadership that we need right now. And, yes,
would it be unprecedented if the American government did that?
Absolutely, and that would be the shining star of what we need
right now for the climate catastrophe.


David Roberts


All right, well we're going to return to the political economy
questions later. I feel like I jumped ahead too much. We had the
whole discussion about supply side, but let's return to the
power. So the first thing Biden could do, that would be enabled
by the emergency declaration, is reimpose the Crude Oil Export
Ban. So let's go down the list again. What's number two?


Jean Su


So number two, well, it depends on where you want to go, whether
you want to go finance or renewables, but let's go for finance
because a lot of people are interested in this one. There is
another power that is the most frequently invoked NEA power, and
that is with the International Emergency Economic Powers Act,
which we belovedly call IEEPA. And IEEPA is evoked every single
year by a president at least once. We've seen it this year
already with the ban on Russian imports of oil, by President
Biden, and it essentially allows the president to control
commerce when it's necessary to deal with a threat, with an
outstanding threat.


So one way that we think that he could use this on fossil fuels,
or climate in general, is that he could actually stop the
hundreds of billions of dollars every year that leave from the
United States private institutions towards fossil fuel projects
abroad. And the single analysis that has — basically, this is as
much as public organizations have been able to garner, is that in
2020, 16 American financial institutions shipped out $470 billion
to fund twelve fossil fuel expansions, that are going to be
emitting 175 gigatons of additional CO2, which is actually almost
half of our remaining carbon budget.


David Roberts


So this would be literally, like, if he did this, that would
render those loans, like, literally illegal? I guess I'm
wondering about sort of the enforcement or the legal regime
around them. If he just declares it a Climate Emergency, declares
this, you know, no more financing of international fossil fuel
projects. And then, you know, some bank sends a loan somewhere.
Like, do you send the police to the to the bank? How does that
work?


Jean Su


Yes, correct. So they are sanctions. And it has been done on
individuals in the United States. It has been done on companies
during the Apartheid era in South Africa if anybody was sending
finance goods over to South Africa. Yes, if you do that, you will
be sought after. That is against the law.


Right now, it's in place for financing Russian businesses, for
example. And it's under the International Emergency Economic
Powers Act, or IEEPA.


David Roberts


Right. And so has there been a case of that being enforced? You
have a case of like a company getting dinged for doing that? Or
is it mostly obeyed?


Jean Su


It is obeyed, and there are sanctions on those who violate it.
And when I say this is normal, this is the most normal emergency
power that is used every single year. So there are violations,
and there's general compliance as well.


David Roberts


So there's an infrastructure set up to enforce it.


Jean Su


There is a very robust infrastructure with IEEPA to set this up.


Maya Golden-Krasner


It's been in place for, also, for transactions with Iran and
fossil fuel financing as well. So often it's used for particular
countries, but it doesn't necessarily have to be.


David Roberts


Is it fair to say that this would be the most sweeping use of it?
Because no financing fossil fuels is pretty big sweeping
prohibition. Is this notably more ambitious than those previous
uses of it? Or do you think it's sort of in keeping?


Jean Su


I think it's in keeping to a certain extent because it's just, in
terms of the amount of dollars, I think that we've, for certain
countries that are sanctioned, for example, I think there are
billions of dollars involved with that. But I do think this is
keeping consistent with the Biden administration's own view on
finance towards fossil fuels. They themselves, last year at the
Climate Change Conference, did a historical pledge to stop
putting public finance into fossil fuel. That was laudatory, and
that was a great thing that Secretary Kerry has committed to do.
So this would be an extension of that principle towards our
private financial institutions.


And I think, given our different discussions that we've had with
people on the Hill, this one is also politically savory, and it's
definitely pulling finance from fossil fuel projects. Really kind
of looking into our own footprint, into the tremendous and dirty
emissions that are happening abroad, is just common sense. And so
I think that this one, in particular, is a powerful and important
tool under the NEA.


David Roberts


Got it. Let's turn to boosting domestic production, which you
have enabled by the Defense Production Act. So maybe just tell us
a little bit, like, what is the Defense Production Act? And I
know that Biden has invoked that, he's done some stuff under that
act. So maybe just tell us like what he's done and then sort of
like the further steps you would like to see.


Jean Su


So the Defense Production Act is my favorite statute of all time.
I have a very sweet spot in my heart for the Defense Production
Act.


So the Defense Production Act. It was made during wartime, during
the Korean War. And what it essentially allows it to do is it
tells the president, allows the president to identify those
materials and goods that we need right now for our national
defense. And it allows him to marshal industry, as well as other
important stakeholders, bring them to a table and say, "this is
what we're missing, this is what we need to produce, can you
produce it? And we will buy it from you or figure out other ways
for it to basically come to fruition."


So in a wartime setting, it has been used for, "we need to
manufacture tanks, so vehicle makers please start making tanks.
We need to manufacture artillery, so hunting gun makers start
making that. And we will give you grants, loans, loan guarantees,
and/or purchase agreements from the government to make sure that
you feel secure as a company to make those types of moves." And
the other thing it does is that industry, therefore, is working
together, so it shields all of these players from working
together, from antitrust laws. So it is really an all-hands-on
approach to critical materials.


And one of the most incredible parts about the Defense Production
Act, if you read it from front to end, is that there is a whole
section about energy, and there's a particular section about
solar, wind, and geothermal as critical materials for our energy
security.


David Roberts


No kidding. When was it written?


Jean Su


50s.


David Roberts


No kidding. Quite a bit of foresight there.


Jean Su


There is incredible foresight with this act. The way that we've
thought about it through the climate lens is through the "clean
energy and electric vehicle" lens. The US does not have the
manufacturing base, right now, for those types of technologies.
And in fact, we're seeing those technologies be made, in some
instances, with Uyghur slave labor and other slave labor around
the world. So what the Biden administration did, which was such a
sea change in how it is approaching climate change, is that it
invoked the Defense Production Act to manufacture clean energy
technologies. And these included solar, it includes heat pumps,
insulation, and transformers. And these are all critical
technologies that we need for our national defense against the
Climate Emergency. And we were also particularly heartened to see
some justice aspects, that we had outlined in our blueprint, that
were also picked up.


So when we talk about manufacturing, well, the question is where,
where should it be manufactured?


David Roberts


Right.


Jean Su


This is a place where the Biden administration can intentionally
choose areas that have been economically blighted. They can with
economic and environmental justice kind of communities as well,
so that they are filling their J40 aspects and really choose —
and also with Midterms coming up — choose places that may be
helpful in terms of making sure that Democrats stay in power. So
where manufacturing occurs actually can have incredible benefits,
especially from a justice lens of where it needs to go and
generate jobs.


David Roberts


So there are factories producing solar panels now in response to
this and receiving government grants in response? Is this
happening?


Maya Golden-Krasner


Soon, hopefully.


Jean Su


This was just passed in June, and they are just getting their
roundtables together now. It's already the end of July. And so we
would say, "Biden administration, please act with more haste, and
speed it up." But there is a limiting factor here, and the
limiting factor is finance. And there is a DPA fund out there,
$10 billion just got injected for COVID purposes for the Defense
Production Act to use. So we actually have seen Congress, this
Congress actually, like exact Congress give $10 billion to the
Defense Production Act when Biden has pulled it for COVID.


We would obviously are trying to get as much from this Congress,
now, for these new clean energy funds. We were successful
recently in getting $105 million extra from the House, and that
is now being considered by the Senate. But that certainly isn't
enough.


David Roberts


So to be clear, so the money that the government would use to
incentivize the people doing the manufacturing in response to
this has to be appropriated by Congress.


Jean Su


So, traditionally, it has been appropriated by Congress. There
are other ways though, with existing budgets out there in the
federal government, that you could actually achieve the same
effect. So for example, we have a $650 billion federal
procurement fund every year, and the Biden administration has put
out an executive order saying, "please buy clean energy when you
can." One way that manufacturers can actually feel more secure
right now in making this transition, is if we use those federal
dollars and say, "hey, we commit to buying your goods as part of
these Defense Production Act clean energy orders." That is one
way that you compare an existing budgetary amount with these DPA
clean energy orders.


And there are other programs as well like WAP, the Weatherization
Assistance Program, the LIHEAP Program. And we would argue
there's other kind of interesting ways to also leverage FEMA
funds towards buying and purchasing, and deploying renewable
energy as well as climate funds. We actually have technical
assistance commitments that we've made abroad, where we could
actually purchase American-made pieces and ship them abroad as
well.


David Roberts


Intuitively, it seems to me that the amount of money necessary to
create a domestic manufacturing industry, or several actually, is
just huge. I guess, just intuitively, that's a huge amount of
money. And it's hard for me to believe that the government, even
if it scrapes together all these piles of money, is really going
to have just kind of the brute force cash to do that. Is this
more of like a seeding or instigating kind of thing, like trying
to channel private funds?


Jean Su


Absolutely. So the Defense Production Act is just a jump-starter.
We cannot afford to pay for every single solar panel out there.
Absolutely. So what we're looking for with the Defense Production
Act is just that amount of investment that is enough to make
manufacturers change, expand their factories, and actually start
on new pieces of technology that are necessary. We already have
fledgling pieces of this all over the country, and right now,
it's just about boosting it and making them understand that this
market is burgeoning. And so we're not looking for the full. I
mean, we can't even get what we need for BBBA. So we just need
that seed funding and that investment funding. And it doesn't
have to just come from the federal government.


We have state government surpluses. My gosh, California
government is as a huge surplus right now. We have state
governments, we have private companies, first movers like Apple
and Google, et cetera, who also may be interested in putting
their private capital and committing to purchasing non-Uyghur
labor clean energy goods. So there's a lot of potential in what
the DPA can do, and we're really heartened to see that in the
clean energy orders. He can also further expand that to other
technologies that we would need. For example, in the
transportation sector with electric vehicles, E-buses, and
charging stations.


Maya Golden-Krasner


One of the other helpful things, too, is that it can bring
together industry all along the supply chain. So if there are
supply chain disruptions or things that are also blocking the
ability of companies to manufacture things here, it's a way to
bring everybody together to figure out, "how can we coordinate,
how can we unblock that issue too?" And there's also other
financing mechanisms, like Jean was saying, and there's like
public-private partnerships and loan programs through various
departments of the federal government, too. So it's just really a
great way to coordinate and be creative, in terms of coming up
with funding.


David Roberts


Okay, so far we have halting crude oil exports, cutting off
private funding for international fossil fuel projects. We have
marshalling domestic manufacturing industries for clean energy
technologies. Maya, is there a number four that you want to get
in a mention of here.


Maya Golden-Krasner


Well, we can get into some of the production side issues. So, for
example, we can suspend production on fossil fuel leases in our
oceans, especially the Gulf and the Arctic under OCSLA.


David Roberts


Under which now?


Jean Su


It's the Outer Continental Shelf Lands Act.


Maya Golden-Krasner


Exactly. And so that's kind of a major one for fossil fuel
production.


David Roberts


You mean that would stop all — what does that mean? How big of a
piece is that? How much on the Outer Continental Shelf is going
on now? And how much would be cut off by that?


Maya Golden-Krasner


Well, there's a significant amount that is going on, especially
in the Gulf, and they're trying to open up more in Alaska. So the
idea would be to suspend that production, probably, while they
come up with a plan for kind of a managed decline of all
production in our federal waters and our public land. So our
Emergency Report is actually a companion piece, as Jean was
mentioning at the beginning, to an original report from 2019 that
was about Biden's ordinary executive powers. So the idea would be
to suspend the leases offshore, and then come up with a plan for
a kind of managed, thoughtful, intentional ramp down of our
production and public lands and waters.


David Roberts


But didn't Biden just recently, notably, not do that?


Maya Golden-Krasner


He did recently, notably, not do that, which has been really
frustrating because one of the reasons that we'd like to see him
do this Climate Emergency Declaration is to really focus his
policy. So he came into office saying, "no new leases, no new
leases." And then Russia invaded Ukraine, and gas prices went up.
He's like, "oh wait, whoops, maybe I'll do some leases. Maybe we
should probably start doing this."


First of all, offering new leases for production is not going to
affect gas prices. Oil companies right now are sitting on huge
numbers of leases and not producing anything on those. So they
don't actually need new leases. And secondly, we just need him to
really focus on the Climate Emergency at hand and phase out
production.


David Roberts


There's this sort of generic argument about supply-side versus
demand-side policy. But then there's also a more specific
argument, which is right now, specifically, there's this
situation with Russia invading Ukraine. Russia is cutting off gas
supply to some people, and there's this crisis, like, Europe is
supposedly heading for shortages, and natural gas prices are
spiking. So what about the argument that cutting back US
production at this particular moment, while the crisis of Russian
gas is going on, is just going to make that crisis worse, make
those gas prices even higher, make European shortages even worse?
Like, how do all these supply-side things you're talking about
interact, in your mind, with the Russia situation?


Maya Golden-Krasner


So, first of all, I think it's important to note that we're not
saying end all production tomorrow. What we're saying is, first
of all, you don't need new leases. You have plenty of land, you
have plenty of production going on right now. We're asking for an
intentional, managed decline while we ramp up renewable energy at
the same time. And secondly, the oil industry is always going to
have price spikes, economic pain, and price gouging. As we said,
they are making huge profits right now, $3 billion a day, and
that's expected to be even higher this year while gas prices are
up, while people are hurting.


So the solution to both the climate crisis and gas prices is
really just to get off of oil and transition as fast as possible
to renewables, creating jobs in the process. The other thing for,
domestically, oil prices are controlled by refineries too, that
also manipulate the market to keep prices high. So you'd see that
the price of a barrel of oil went down long before gas prices
went down, here, because the refiners were artificially
manipulating how much they want to manufacture in order to
maximize their profits.


David Roberts


Yeah, I'm not sure people appreciate that when Biden goes to oil
companies and says, "please produce more, so that we can lower
the price of your product." Companies don't generally want to
reduce the price of their product. Companies generally like when
the price of their product is high. It's serving the oil industry
quite well for these sort of temporary shortages to be jacking
prices up. They're not super incentivized to ramp up production.


Maya Golden-Krasner


Biden really doesn't have any leverage there.


David Roberts


Yes.


Jean Su


So much of the inflation issues that we're seeing right now is
purposeful price gouging by oil and gas companies. Mayor Pete was
talking about this the other day, and his explainer of all of
this, and how he doesn't understand why oil prices fell a bit,
but gas prices are still artificially up there. So I think it is
important for us to recognize the very thoughtful and intentional
way that oil and gas companies are controlling what is happening
right now, and that the supply issues going on, in the long run,
for us to really deal with inflation and fossil fuel price
volatility. The one way to actually get out of that is to get off
of oil and gas, and that is completely antithetical to any new
leases. Any new leases that are allowed right now are basically
locking us into decades more of that type of dependence. And that
is the opposite way we need to go for energy independence.


Maya Golden-Krasner


And if you think about it, every dollar that we're spending right
now to push fossil fuels is a dollar that is not going to
renewable investment. And so we just really need to be pumping
everything we can to make that transition as fast as possible.
And we're not saying it's going to be painless, but we have no
choice at this point.


David Roberts


And that power that you're just discussing Maya, is not an
emergency power. That's just something the president can do,
something that is within presidential authority. The continental
shelf thing, or is that an emergency thing?


Maya Golden-Krasner


So in order to suspend production on leases in our oceans, that's
an emergency power.


David Roberts


What about on public lands?


Maya Golden-Krasner


On public lands. So what he can do is every time they kind of
update their resource management plans — which are sort of their
overarching plans on what lands are going to be open for leasing,
where they're going to be production — they can say, "these lands
are not going to be open for leasing. We're not going to lease
these anymore," for example. So that's from ordinary powers, the
Department of Interior can also withdraw leases if they were
issued illegally or as a result of fraud. And there's an argument
there that the oil companies have been operating on the
fraudulent basis for years and have been deceiving.


David Roberts


Because of hiding their knowledge of climate change? Because of
that or something?


Maya Golden-Krasner


Yeah. And as I said, areas that haven't been leased yet can be
withdrawn from consideration under ordinary powers, under OCSLA,
or through the resource management plans for public lands. And
then for places that are legally producing right now, they
wouldn't be shut down tomorrow, but they would be sort of
thoughtfully ramped down. And actually, whenever oil companies
sign leases, in their leases, they come with clear language that
says that the leases are subject to restrictions, including the
possibility of lease suspensions or limitations on rate
production. So they've already signed that they understand that
that sort of comes with the deal of having a leasing our public
resources.


David Roberts


Got it. Alright. We've covered quite a bit of power that Biden
has, although I should emphasize here to a listener that we have
barely scratched the surface. I would encourage him to go check
out your 2019 report. It is capacious, in its detailing of sort
of his powers to do various things on the supply and on the
demand side.


But before we use up all our time, I want to get to a couple of,
I guess, political questions, what you call political questions.
To begin with, the Supreme Court. The Supreme Court is
cartoonishly bad at the moment and looks to be bad, jeez, for the
rest of our lifetimes. So to what extent is Biden executive
action constrained by the Supreme Court? Like, my assumption is
anything he does, somebody's going to sue, and it may or may not
end up at the Supreme Court. So I guess my question is, how
confident are we in the legal case for these things? And are you
nervous about the Supreme Court's jurisdiction over this stuff?


Maya Golden-Krasner


Being nervous about it, I guess, isn't really the issue, because
it is what it is. So all of the actions that we recommend are
solidly grounded in existing law. We want Biden's actions to be
upheld in court, and we crafted the recommendations, we think, to
achieve that. But that said, the unfortunate current reality is
that the fossil fuel industry and red states are going to sue
over anything that Biden does. Like you said, it could be minor
and incremental. And unfortunately, a lot of the times, we're
seeing the outcome of the cases decided not on the strength of
the legal claim, but the identity of the judge who decides it,
including at the Supreme Court.


Some setbacks are inevitable, but there's going to be some cases
that are brought before fair judges who are going to uphold them.
And so we don't see the Supreme Court as a reason for inaction,
but more as a reason for Biden to act even more urgently. I think
one example of what you're saying, that they're going to
challenge anything, is that when Obama's EPA first adopted the
Clean Power Plan. It and some big environmental groups said,
"Okay, this is the way to go, not a bolder move under the Clean
Air Act," because it saw it as this small, incremental step that
the Supreme Court would definitely uphold. And look what
happened.


We think that it's important to take emergency actions that are
going to save lives, make the world a better place, and just have
Biden enact them. And if the Supreme Court strikes it down, then
Biden should get up and use his bully pulpit to explain why it's
such a problem, explain what's so important about enacting bold
climate measures.


David Roberts


Also in the Supreme Court, I mean, you could see them ruling
against this or that specific executive order for this or that
specific technical legal reason. But is there anything, like when
it comes to the EPA case, there's this major questions doctrine
which, depending on what side of the bed John Roberts gets up on,
could theoretically cripple the EPA's ability to do almost
anything. It's so vague, you could use it for almost any reason.
You could take away a huge swath of the EPA's power. Is there
something similarly sort of legally radical that the Supreme
Court could do to constrain the executive powers of the
presidency in general? Or is this more of a battle-by-battle kind
of thing?


Maya Golden-Krasner


I mean, I think it's a battle by battle thing. The Supreme Court
is going to strike down whatever they feel like striking down.
For example, "I don't want abortion anymore. I'm striking this
down. I'll make up a reason based on what people in the 15th
century thought about abortion, that's fine. I'll just make it
that," you know. And so our hope is that if Biden takes these
really bold actions, and and people see that they're life-saving,
and they kind of start down the path, they're going to be harder
to reverse. So that's one hope.


Jean Su


And I would say many of, Maya had said this, but the powers that
we have elucidated, especially for the emergency powers, those
are actually quite straightforward powers. Literally. The Crude
Oil Export Ban says, "if the president declares a national
emergency, he can reinstate the Cude Oil Export Ban." There's not
much interpretation there. The interpretation there that people
are arguing now, that you see a little bit in the news, is this
question about emergency. What is an emergency? And that can have
be debated about. That in fact, was litigated on during the
Border Wall Case, which I personally litigated.


David Roberts


Oh, interesting because Trump declared an emergency. Right. How
did that go?


Jean Su


He did. Yeah, really heartbreakingly. That border wall has been
built, and that case, and the litany of cases — there were cases
brought in three different jurisdictions across the country to
challenge this. The lower courts actually found really good
things. They found that his total Trumping of Congress's bid to,
"say you are not allowed to get over 1.2 billion," but he went
around their backs anyway to do it. They found that was illegal.
That was great. They also found that the way he was using the
particular emergency power that he invoked, which is redirecting
military funds towards military purposes, was also statutorily
not correct because the border wall has nothing to do with the
military.


So those, those were good findings under, you know, in the
district courts. It eventually trickled up to the Supreme Court,
and the Supreme Court vacated everything, and the Biden
administration mooted it out. But in our case, in the DC
district, one very good thing actually came out of that decision,
and it was the fact that the term "emergency" is a political
question, and that courts cannot ... yeah.


David Roberts


Oh, interesting. I was going to ask about that.


Jean Su


Absolutely.


David Roberts


The president's ability to decide what is and isn't an emergency,
that's not within the Court's. Like the Court can't come in and
say, "we disagree that this is an emergency."


Jean Su


Well, the District Court, at the very least on this set of cases,
said, "that's a political question." And in fact, that is a
political question. The way that the National Emergencies Act was
written is that it does not define the term "emergency". It
purposefully did not define that because it gives the president
discretion to do that. In statutory language, what that means is
that we rely on what is a common understanding, what is the
dictionary definition of emergency. And so there are going to be
arguments about whether a Climate Emergency is an emergency. I
think for, I don't know how you feel, but with the world burning,
literally burning right now, I actually think that it does
qualify as an emergency that one should act on.


And so we're going to have those types of cases, I believe, if
this comes up, and it's up to the courts to figure out whether
the Climate Emergency is indeed an emergency. And so those are
the types of cases I think that will come up.


But one of the things that's really important from all of this
is, "should you not try then just because it's going to be
litigated?" And I think that is a common retort to many types of
proposed new ideas and actions. "Well, it's going to be
litigated. Well, if this was a Republican administration" — I was
litigating every day against Trump. Absolutely, these things are
going to be litigated, but that is not the excuse to not try. And
the other kind of thing about it is, "oh well, it's going to be
reversed by the other side." And that's an argument.


David Roberts


That was my next question because we lived through this, right?
We lived through Obama having legislation taken away, basically
resorting to executive action, and then just having either courts
or the subsequent administration, shoot down almost all of it.


Jean Su


And we also have seen gains at the same time. The things that we
are asking for, with respect to climate, are jump-starting
things, that can actually start transforming the market. We can
actually use as much time as possible to get these actions
jump-started. And at that point, if and when they do get strucken
down, there will be movement that would have been made. There
will be less barrels of oil being extracted and poisoning
communities. And for every day that we can stop a child, right
now, who is suffering from the climate crisis because of that
fossil fuel pollution, otherwise, if we can just have a few more
days at that, that works.


And that helps. And I think perversely, we have seen the border
wall. The border wall was challenged. It was eventually mooted.
But guess what? That border wall is still there.


David Roberts


Yeah, facts on the ground, as they.


Jean Su


Say, that is in the ground. That is an executive action that was
essentially mooted out. But it is there, and it is a monstrosity,
and it is still in its destructive mode. If we think about it
that way, in a perverse way, executive action actually does a
lot, and even if it gets reversed later, it will have impacts.
And hopefully, on the pieces we are talking about, good impacts
that will last and trigger something much greater for the
transition.


David Roberts


And also, if Biden doesn't have Congress, what else is he going
to spend his time doing?


Maya Golden-Krasner


He has things that he should have been doing since day one, not
even emergency powers. I mean, he really could have been doing a
lot of these things starting from the moment he took office. But
he chose to wait Joe Manchin out and look where that's gotten us.
And so now we're even further behind.


Jean Su


And Dave, I think the point here is that this is not an either/or
decision. Absolutely, we need legislation, and absolutely, we
need an executive action. I think that bifurcation is just false.
We need both/and, and we have needed that from day one. From day
one, he could have stopped all new oil and gas leases. He
actually went in the wrong direction. From day one, he actually
could have started producing less and less oil from existing
leases. He could have also increased the standards of our car
emissions, which he has not raised, to even back to what the
Obama administration had.


So these are pieces in his pocket that he has had. And if he
declares a Climate Emergency, I would hope that, at the very
least, it gets rid of these inconsistencies, and it puts the fire
under every single agency to really look at every single power
that they have and go for it, because we just don't have time to
diddle-daddle anymore.


David Roberts


Well, as a final question then, let's talk about politics.
Because I think it's fair to say that Biden himself is probably
sort of small "C" conservative, institutionalist, doesn't like to
.. ...


Maya Golden-Krasner


He's a senator.


David Roberts


... radical. Yes, he was a senator for whatever, 107 years. So
that's very deeply in his, in his bones. And I think the
administration, probably as a whole, if you, if you look at it,
is pretty small "C" conservative, has not really been willing to
do things radical. I mean, one of the reasons, as you mentioned,
is they're scared. Anything they do that's sort of bold, or out
of the ordinary, or that goes against fossil fuels is going to,
absolutely, put the final stake in the heart of any chance of
legislation.


But as I think we've discussed, it looks like that ship is
basically sailed at this point. But let's just talk about the
politics of it because it's not clear at all, to me, that this
would be good politics for Biden. I mean, it would look like —
and it would be characterized by the right, and probably a bunch
of jerks in the mainstream media — as, basically, Biden couldn't
get legislation, he couldn't get people together to sign off on
legislation. So now he's being a dictator, and he's just ramming
through the far left agenda, and he's going to cut off our energy
production that makes America great, and he's going to raise
energy prices.


And you don't have to guess at the kind of attacks that this
would bring. And like Biden doing a bunch of stuff that's
unpopular, and then Democrats losing in 2024, and Republicans
gaining a trifecta would be worse than anything you could
imagine. So aren't you all a little nervous, at least about
counseling this kind of thing? Do you think about the political
implications? Do you worry about the political implications? Do
you think I'm wrong about the political implications?


Maya Golden-Krasner


Well, there's a recent poll that shows that 58% of Americans
actually say they would support a Climate Emergency Declaration
if BBBA doesn't pass, which it looks like it's not going to. And
80% of Americans think the government should be doing more to
support climate. And we're seeing huge percentages, 100 million
Americans under a heat warning. We have fires raging across the
country, across Europe. I'm in the South in California. People in
the Southwest were, basically, facing a permanent humongous
drought right now. And so I think huge percentages of Americans
are feeling the Climate Emergency in these palpable ways, and
it's getting to a breaking point for people calling for change
and urgency of transformation.


David Roberts


But it sure seems like freaking out about gas prices ... they're
like, "oh, we're very concerned about climate change. Whoa, what
gas prices? Never mind all that. Never mind all that. Bring my
gas prices down." I'm not sure that the support for climate has
the endurance, or the depth, that just the general American
aversion to taxes and high prices has.


Jean Su


To answer that question, yes, we think a lot about politics, and
how this would affect people, and what they're thinking. I think
a National Climate Emergency and the powers that he chooses to
pull from there, have to be extremely intentional. At the end of
the day here, we're trying to protect the American public, and
what they need to know right now is that they will have some
safety in the face of the burning wildfires and heatwaves that
they have right now, as well as the hole that's being burned in
their budget because of this inflation. So there has to be
absolutely an intentional plan for phasing out existing fossil
fuels.


That's not something that is particularly controversial in any
way. It's just we need to get off this. And at the same time, we
are seeing so many people in the public really put those two
together, that climate, and everything that's happening, and
vulnerability to oil and gas really means getting off of it. We
are seeing better understanding that solar, and clean energy, and
E-vehicles, if they can actually be penetrated down to low-income
communities, that people are very excited to get it. We work with
communities on the ground. I think there's this polling out
there, and elites sitting in their desks and doing that.


We get to talk to people on the ground who are suffering every
day from this. And they're not big "d"s, little "d"s, whatever.
They're just normal, everyday people, who are really so scared
about what is going to happen. And they know that the only way to
get it out of this issue is to stop fossil fuels. And so whatever
the president does, it's about getting to that end but doing it
in a way that is safe and that, essentially, protects our most
vulnerable communities first. And I think there are absolutely
ways that we can do that by using the many different executive
powers that he has, to map out that plan super intentionally.


Maya Golden-Krasner


Maybe he should just call the plan "Making America Great Again".
Maybe that'll work.


David Roberts


Well, this has been super illuminating. There's been so much
vague talk about executive action lately. It's really nice to get
some concretes and some specifics, and hash through them. So,
Jean Su and Maya Golden-Krasner, thank you so much for coming and
spending all this time.


Maya Golden-Krasner


Thank you. It's been fun.


Jean Su


Thank you, Dave. It's been an honor and pleasure.


David Roberts


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