“We are still in.” That was the message that the Democrats of the United States, led by Congress speaker Nancy Pelosi, repeated in 2019 through the pavilions of the IFEMA convention center, in Madrid. At the end of that year, when Donald Trump was still in the White House, the Spanish capital hosted the UN climate summit. The Democrats were making an effort to explain that, despite Trump – who even took his country out of the Paris Agreement – there were local and state governments committed to the fight against climate change within the US. “We are back,” the Democrats repeated in 2021 after managing to remove Trump from power and reintegrate the United States in the Paris Agreement and the global climate negotiation. However, the Supreme Court ruling that now limits the freedom of action of the federal government and the Environmental Protection Agency (EPA) to restrict greenhouse gas emissions is a new blow to the credibility of the country in the international fight against global warming. A UN spokeswoman defined the ruling as a setback in the fight against climate change, one that makes it difficult to meet the objectives of the Paris Agreement.
The Joe Biden administration returned to the fight against the climate crisis with aspirations to lead this international battle, and in April 2021 it organized a summit. Biden surrounded himself virtually with 40 world leaders — including Vladimir Putin from Russia and Xi Jinping from China — and announced an ambitious goal: the US would reduce its greenhouse gas emissions by 50 to 52% in 2030, compared to 2005 levels. The United States was thus placed among the most ambitious powers, almost at the same level as the European Union. However, questions remained about the reliability of America - historically the main culprit for global warming, even if today the world’s leading emitter is China. This was because of the US’ past history and to the problems that Biden could face to apply the necessary policies to fulfill the promises made before the UN, as is now the case with the ruling of the Supreme Court, which is controlled by a conservative majority.
This commitment to cut emissions by up to 52% in 2030 was presented by Biden before the United Nations in the context of the Paris Agreement, signed in 2015. That pact worked out thanks in large part to the involvement of former president Barack Obama, but the outline and the enunciation of the agreement — which instead of establishing specific cuts to the signatories lets each country set its own goals — was adapted to the needs of the United States. No binding formulas remained in the Paris text, in order to prevent the Democrats from having problems within their country for the ratification of the Paris Agreement.
Because there was a precedent of a climate fright. It happened with the pact that came before Paris: the Kyoto Protocol. The treaty, which forced developed countries to reduce their emissions, was not finally ratified by the administration of the Republican George W. Bush in 2001. This did not change with the following governments.
Biden seemed determined to change things, but his politics are now shaky. The problem is that it is necessary to act quickly, as the scientists warn, and this will not be possible. In their dissenting opinion, the three progressive judges who have opposed the ruling argue that one of the main reasons why Congress makes large delegations is so that a body such as the Environmental Protection Agency (EPA) can respond, adequately and proportionally, to the new and great challenges.
“Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. That is what Congress did,” the three judges subscribe, assuring that the sentence “deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases.” The six conservative justices maintain that a clear, express and concrete delegation from Congress is needed in order for the EPA to impose limits on emissions. Biden does not have a majority in Congress to get a new restrictive legislation off the ground.
“The Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions,” the judges continue. “The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent,” writes Justice Elena Kagan in her dissenting opinion, which is part of the 89-page sentence, also signed by Stephen Breyer and Sonia Sotomayor.
The second largest emitter
Since the Kyoto ratification fiasco at the beginning of this decade, China has become the number one emitter of greenhouse gases. But the US is still second. Both powers expel about 40% of all these gases.
If the problem of the US is one of credibility and the impossibility of implementing instruments to fulfill ambitious promises, China’s is one of objectives. So far, the Asian power has only set the target of reaching its peak emissions in 2030, and from then on it will reduce them. China continues to defend the argument that there are common but differentiated responsibilities, alluding to the fact that developed countries must do more than the rest. And at each climate summit, their negotiators emphasize that they do fulfill their promises, a veiled reproach to the United States and its fickle commitment against global warming.
In the US, 29% of greenhouse gases currently come from transportation. That is followed by electricity (25%) and industry (23%). In order to deliver on his climate promises, Biden must establish measures in all of these sectors. But many of the climate policies he has tried to develop have come up against Congress or the courts.
“The judicial branch and the legislative branch are seriously hindering Joe Biden’s ability to get the job done on climate,” Richard Lazarus, professor of environmental law at Harvard University, summed up to The New York Times. This new blow from the Supreme Court comes at a very delicate moment for the climate fight in which the rise in prices of fossil fuels and the war in Ukraine have pushed many powers to move even further away from their climate commitments. The last climate summit, held in November in the Scottish city of Glasgow, closed with a call to reduce public aid for fossil fuels, but most countries are now increasing these subsidies in the face of rising gasoline and diesel prices. And, after their last meeting, the members of the G-7 released a public statement defending publicly supported investment in the gas sector as a temporary response to restrictions on the arrival of Russian gas.
That summit also resulted in a commitment from more than 100 countries to reduce methane emissions by 30% by the end of this decade. That promise was led by the European Union and by Biden; and the EPA, whose wings have now been clipped, was an essential instrument for its application in the United States, which largely affects the oil, gas and coal industry.