When Joe Biden became president of the United States on January 20, 2021, European leaders publicly celebrated the return of their major climate partner across the Atlantic. “Welcome back to the Paris Agreement!,” tweeted French President Emmanuel Macron. For European Commission President Ursula von der Leyen, who was “delighted” about the US rejoining the deal, this was “just the starting point for our renewed cooperation.” US climate envoy John Kerry soon crossed the Atlantic “to renew conversations with our friends in Europe over our cooperation on climate” and emphasized that President Biden had made the issue a top priority.
This was a major shift from the presidency of Donald Trump, who had officially withdrawn the US from the Paris Agreement and made clear that Europe had no climate partner in the White House. But even under Trump there were still Americans committed to the spirit of the deal: US Speaker of the House Nancy Pelosi was speaking for them when she told the audience at the COP25 climate conference in Madrid in December 2019, “We are still in [Paris]."
That “we” encompassed not only the Democratic majority in the US House of Representatives, but also a broad coalition of American states, cities, businesses, universities, and civil society organizations. These entities had organized themselves in groups like the aptly named We Are Still In, committing to uphold the world’s signature climate change accord regardless of what was happening in Washington, DC. And many of them had the power to counteract the Trump administration’s policy and change the US’ climate trajectory thanks to the structure of the US polity, with climate policymaking power shared between the federal level (executive, legislative, and judicial branches), the state level, and the local level.
Indeed, under Trump, Democrat-led states such as Virginia and Oregon passed ambitious emission targets and regulations, while California signed climate agreements with the EU and Germany. Cities such as New York and San Francisco set goals for zero-emission bus fleets. The courts played a role too: when a federal appeals court rejected the Trump administration’s effort to relax Obama-era restrictions on carbon dioxide emissions from power plants on Trump’s last day in office, it capped off a long losing streak for the Republican president’s Environmental Protection Agency.
Under today’s greener White House and Congress, however, that same federal structure is now empowering skeptical sub-national and judicial entities to hinder the energy transition—in short, parts of the US remain very much “out” of Paris.
State-level Obstruction
There are three main ways in which actors outside of the Biden administration and the US Congress are inhibiting climate action in the United States.
First, there is outright obstruction or sabotage by sub-national actors. The biggest trend in this regard is (usually Republican-led) states blocking or overriding the climate policies of US cities, which tend to be more progressive and committed to climate mitigation. American cities are increasingly using their authority over building standards to mandate retrofitting or to ban natural gas hookups in new buildings—this is a crucial part of the effort to eliminate the 13 percent of US emissions that come from the buildings sector.
But some states are reining their cities back in to protect the natural gas industry. More than 20 states have now passed laws prohibiting local-level bans on natural gas. These are known as “preemption” laws because state law preempts local law, just as federal law overrides state law under the US constitution. The supposed justification for such efforts is to preserve “energy choice”; the effect is to further entrench fossil fuel infrastructure.
States that produce oil and gas are especially prone to using their preemption power, says Professor Michael Gerrard, the founder of the Sabin Center for Climate Change Law at Columbia University. In 2015, as the Obama administration was negotiating the Paris Agreement, Texas passed a law preempting local measures to keep fracking wells far away from communities. In the six years since, similar laws have been passed in Colorado, Louisiana, Pennsylvania, and Kansas, among others.
Autumn T. Johnson, the CEO of the public interest policy advocacy firm Tierra Strategy, says that the possibility of preemption has a “chilling effect,” preventing cities even debating climate policies for fear of drawing the attention of their state legislature. Johnson’s current home state of Arizona is a good example of these clashes between climate-conscious US cities and fossil fuel-friendly states. Whereas cities like Phoenix and Flagstaff conduct their own regular greenhouse gas (GHG) emissions inventories and have climate action plans, “Arizona has a statute on the books that prevents the Arizona Department of Environmental Quality from regulating GHGs,” Johnson says.
A leader in climate policy in the 2000s, Arizona reversed course during the Obama years as the issue became more polarized. In 2014 the Republican-majority legislature outlawed plastic bag bans in cities and towns; in 2015, it prohibited cities from requiring energy benchmarking for commercial buildings. And in 2020, the state passed a new law preventing Arizona’s cities and towns from banning natural gas hookups in new buildings.
Climate obstruction can also take a more indirect form, Johnson says: “In a lot of states, the utilities and commission have been dismantling net metering policies,” which allow consumers to earn money for the solar power they feed back into the power grid. In 2020 Kentucky and Texas both took steps to raise rates for consumers of solar power (but not fossil fuels). West Virginia and Texas are among the states trying to reduce financial pressure on polluting industries through laws directing state officials to divest from financial institutions that are supposedly “discriminating” against fossil fuels.
In addition, some towns and counties are putting up their own roadblocks. They are enacting moratoriums on all solar projects (as in e.g., Woodland, North Carolina), denying permits for specific projects (Jackson County, Oregon) or imposing blanket bans on wind power (Boone County, Indiana), to take just a few examples. A Sabin Center report, edited by Hilary Aidun, found over 100 local laws blocking renewable energy across nearly every state. The justification for such restrictions ranges from maintaining property values and beach views to defending populations of endangered bats. States could use their preemption power to override these local obstacles, though restricting local autonomy is often bad politics, and there is no wave of laws forbidding bans on renewables comparable to the wave of laws stopping gas bans.
Inaction and NIMBYism
The second obstacle to an effective US climate policy is subnational foot-dragging due to cost, inconvenience, or local politics. For Daniel Farber of Berkeley Law, “active resistance based on principle” like preemption laws or renewables bans is “less of a factor than inertia and NIMBYism”—Americans’ predilection to say that new construction is OK, just “Not In My Backyard.”
As Farber points out, whereas Republican-led states are doing most of the preemption, “some of the problems of inertia come from the left … the siting issues in California remain quite real.” It was in 2008 that California voters approved a bond to build a high-speed rail system from Los Angeles to San Francisco. Thirteen years later, the project is wildly over-budget and is projected to finish in 2033—land acquisition and permit issues as well as environmental litigation have waylaid an emission-reducing project in a state with a Democratic supermajority. What’s more, that majority has repeatedly rejected bills to allow dense housing construction near mass transit, which means that residents in America’s biggest blue state continue to sprawl across a landscape increasingly threatened by forest fires. The recent move to permit duplexes on formerly “single-family” lots is a small step forward.
On the other coast, in New York City, the state lawmakers who more than two years ago approved the country’s first-ever congestion charge have run into vehement local opposition. The city is just beginning public hearings that will run until 2023; this is slow progress in a field that demands rapid action. A lot of these issues stem from the fact that it is state and local governments that have authority over where infrastructure projects may be located. “Even people in favor of climate policy may have an issue with a transmission line running through their neighborhood,” Farber says.
The story of the struggle to build power lines in the largely Democrat-voting Northeast is illustrative here, says Liza Reed, a research manager at the Niskanen Center. Massachusetts passed legislation in 2016 requiring its utilities to source more low-carbon power and decided bringing in hydropower from Quebec was the best option. It first tried to build transmission through New Hampshire—and failed. It then tried the neighboring state of Maine and got successive Maine governors to approve the line. Permits were issued and construction began. But in a referendum in the fall of 2021, Maine voters blocked the project. “The best-case scenario now is that there is a big delay before the federal government can use its authority” to allow the line to be built, Reed says.
Tom Cyrs of the World Resources Institute generally researches the potential positive side of subnational action. But he acknowledges that there are states that “are inactive in certain areas or don’t have ambitious climate policies.” Only 12 states have a zero-emission vehicle mandate. Fewer states offer subsidies for electric car purchases than did in 2015. Despite the recent flurry of net-zero announcements, only 40 percent of US electricity demand is covered by such pledges. State-level action is essential, Cyrs says: “At the end of the day the federal government is still going to be limited in its authority to, for example, prioritize certain areas for renewable energy deployment or ensure that we get to the right level of EV sales.” The massive lobbying power that electric utilities enjoy at the state level plays a role here, shutting down legislation that could hurt incumbents’ profits and ensuring that state-level fossil fuel subsidies remain on the books.
Finally, there’s the question of climate justice—“of how communities impacted by coal plant closures are taken care of or made whole,” as Johnson puts it. One electric utility in Arizona, Arizona Public Service, was willing to make a $100 million investment in “an affected Navajo community where plants have closed,” she says, “but that investment did not have the political support to pass at the utility commission.” If states don’t try to make the energy transition smoother, there will be less support to make the transition in the first place. It’s a vicious cycle.
Skeptical Courts
The third obstacle is the courts. At the Democratic presidential debate of March 15, 2020, then-candidate Joe Biden said that if he became president there would be “no more drilling on federal lands … period.” As president he has tried to keep that promise, pausing new drilling leases on federal lands in a January 2021 executive order.
Biden has found it difficult, however, to implement these restrictions. Fourteen Republican-led states joined Western oil drillers to sue over the order, and in June a federal judge issued an injunction to block the pause on new drilling leases, a decision the Biden administration is appealing. In the meantime, the US Department of the Interior has had to resume the leasing process and has in fact awarded more new permits than it did during the Trump administration’s first year.
The tale of the drilling leases speaks to the difficulty of changing regulations in a highly polarized and litigious US system. The Trump administration faced 258 lawsuits against its attempts to use agencies to deregulate or implement policies and was only able to successfully fend off litigation 48 times, according to the Institute of Policy Integrity. (These defeats in court were “because of procedural mistakes, not based on the substance,” says Gerrard.)
And the lawsuits from the Republican-led states over the pause on drilling leases are just one example of the judicial assault on federal climate policy. “You’ve got an administration that is using all of its power to move the country in a green direction,” says Nigel Purvis, CEO of Climate Advisers, “and there are state attorneys-general fighting that on so many different fronts. All they have to do is buy time and those lawsuits become the basis of future federal policy.” For instance, Texas, Montana, and 19 other states have sued to overturn the Biden administration’s cancellation of the Keystone XL pipeline. While that Keystone XL case is unlikely to succeed, there are major cases on the horizon that will give the US’s highest court the opportunity to put a crater in the road to a cleaner future.
The most immediate threat to US climate policy is a case filed by coal companies and Republican-led states challenging the US Environmental Protection Agency’s (EPA) authority to regulate power plant emissions. The US Supreme Court will likely rule on the matter in the summer of 2022. Most environmentalists, Farber says, feel that the Biden administration will lose on the narrow issue of whether, under current law, the EPA can force states to change their power generation mix. That alone would remove an important regulatory tool for the federal government at a time when passing climate legislation is a struggle.
The even bigger question is whether, in this case or others, the Supreme Court will issue a more sweeping ruling about the level of deference that US courts should show to regulatory agencies. Since a Supreme Court ruling on the 1984 case Chevron v. National Resources Defense Council, the legal doctrine of “Chevron deference” has prevailed; essentially, the Supreme Court has said that courts should defer to government agencies when a law’s language is ambiguous. This doctrine gives US regulatory agencies significant authority to interpret legislation and fill in gaps left by Congress. If “Chevron deference” is overturned, Purvis says, “it would constrain the EPA and likely increase the power of state attorneys general to use the courts to delay or block climate regulations.”
These legal assaults on climate policy are taking place in a judicial system headed by a Supreme Court much more conservative than the one that in 2016 rejected the Obama administration’s Clean Power Plan. The possibility of the Supreme Court tying the hands of US regulatory agencies is another reminder that US climate policy is not solely decided by the White House or even by the US Congress.
A Federalist Tug of War
The different players in US climate policy know that shifting climate policymaking authority to different levels of government can be advantageous. Some Republican-led states are empowering obstructionists at the local level: Wyoming and Ohio recently gave local governments veto power over large scale wind and solar projects. The Maine referendum about the power line also gave the state legislature, rather than public commissions that regulate electricity, the authority to approve future transmission projects. And the Democratic majority in the US Congress included a provision in the infrastructure bill to give the Federal Energy Regulatory Commission (FERC) the authority to overrule state objections and build power lines in “national interest” corridors. Such inter-level fights are common beyond climate: in recent years, states have gone after localities’ authority to mandate paid sick leave or shelter undocumented immigrants from deportation, or – most recently – to require anti-pandemic measures such as vaccines or masks.
This tug-of-war is happening in a polarized system beset by partisanship, where large groups in each major party see the other as unfit to govern. The federal level is the most consequential, and most headlines are understandably about the Democrats’ travails in the Senate, where their massive Build Back Better bill has been stalled for months. Yet it’s important to look beyond the fireworks on Capitol Hill—at the counties and towns banning renewables, at the states tilting the playing field in favor of fossil fuel interests, at the state attorneys general working to get the Supreme Court to disarm climate regulators.
The State of the 50 States
What’s the outlook for the rest of Biden’s term? The infrastructure act and the (still unpassed) Build Back Better bill will give major grants of federal money to the states, which they are supposed to use for green infrastructure. Purvis says that states have some discretion to decide what is “green” and they could “abuse that or push the boundaries of that.” Cyrs warns that “there are areas where certain local and state governments may not be good faith partners in the implementation of these programs.” Democratic lawmakers remember well what happened with the expansion of Medicaid under the Obamacare bill of 2010, when a dozen Republican-led states declined to expand healthcare coverage for low-income residents despite the federal government’s willingness to cover 90 percent of the costs.
Yet there is reason to be optimistic, too—and not just because there is a still a chance that at the federal level, which remains the most important, the US has a chance in early 2022 to pass a bill with hundreds of billions of dollars of clean energy tax credits. Indeed, many of the states that kept the US “in” Paris under Trump have continued their good work under Biden: Illinois’ new law ordering a transition to 100 percent clean energy by 2045 is particularly impressive because it came from a coal-producing state and promises to take care of those hurt by the transition.
Moreover, some obstructionists may eventually change their stance because the political economy of the energy transition is, thankfully, not immutable. Wind power superstar Nebraska just became the first completely Republican-controlled state to mandate net-zero emissions from electricity by 2050. Some Republican senators have lobbied for support for clean energy, not to protect the climate—they often won’t say the words “climate change”—but because clean energy creates jobs and helps the economy.
The main reasons to doubt that the US will keep its climate promises is that it’s not clear that the party that cares about the climate is willing or able to pass the Build Back Better bill required to get the US within reach of its Paris Agreement targets—and because the party of Donald Trump could soon return the power. Republicans are favored to win the mid-term elections in 2022, setting them up for success in the presidential race of 2024.
But even if the US Democrats can deliver federal legislation, it will be important for America’s European partners not to overlook fossil fuel-friendly governors and mayors, or the conservative judges enjoying lifetime terms. Subnational bodies can do—and are doing—a lot to reduce emissions; but they can also entrench a destructive status quo. In America, no matter who is in the White House, there’s always a climate destroyer in office somewhere. Europe, beware.
Noah J. Gordon is INTERNATIONALE POLITIK QUARTERLY’s climate columnist. Research for this article was made possible with the support of the Heinrich Boell Foundation (Washington, DC)'s Transatlantic Media Fellowship.
