The Biden administration’s path forward on climate change — as the widely deployed metaphor goes — has become more difficult with the U.S. Supreme Court’s recent decision in West Virginia vs. Environmental Protection Agency (EPA) and Sen. Joe Manchin’s (D-W.Va.) apparent veto of a reconciliation package that contains climate measures. If the Biden administration is to successfully navigate that path — and it must if we are to avert the worst consequences of the climate crisis — the president will need to abandon the “compass” that his predecessors have relied on for decades to guide their policy agenda: Executive Order 12866: Regulatory Planning and Review.
First issued in 1994, the executive order empowers a small White House bureau called the Office of Information and Regulatory Affairs (OIRA) to review and approve agencies’ biggest or most controversial rules. The order further requires OIRA to evaluate those rules using a methodology called “cost-benefit analysis,” which is highly biased against protective safeguards and provides convenient cover for politicized interference in agency decision-making.
Fortunately, President Joe Biden seemed to recognize early on that Executive Order 12866 presented an unnecessary obstacle to the realization of his administration’s policy goals. On the first day of his administration, Biden also issued a memo on “Modernizing Regulatory Review,” which called for changes that would make regulatory review and analysis supportive of stronger safeguards. The memo also acknowledged the need to depoliticize the review process and make regulatory analysis more attentive to social justice.
But in the 18 months since, the Biden administration has not taken any steps to implement these changes. The recent setbacks to the administration’s climate agenda from the Supreme Court and Manchin should force a rethink on this neglect. Crucially, progressive reforms to the regulatory process would directly answer the core challenges those setbacks present.
In West Virginia vs. EPA, the Supreme Court’s six conservative members invoked the newly minted “major questions doctrine” in striking down an Obama administration-era rule to limit greenhouse gas emissions from fossil-fueled plants. This doctrine holds that if an agency wishes to undertake a novel approach to policymaking that might have significant economic or political implications, then it must be prepared to point to clear and specific legislative authority supporting that action. As such, it would seem to cast a dark shadow over the Biden administration’s use of regulations to address climate change.