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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 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

Thank you for listening to the Volts podcast. It is ad-free, powered entirely by listeners like you. If you value conversations like this, please consider becoming a paid Volts subscriber at volts.wtf. Yes, that's volts.wtf, so that I can continue doing this work. Thank you so much, and I'll see you next time.