As part of a series examining the first year of the Biden presidency, Harvard Law Today asked Richard J. Lazarus ’79, Howard and Katherine Aibel Professor of Law, an expert in environmental law and policy, to share his thoughts on the administration’s successes, failures, and agenda for the future.
Harvard Law Today: What has the administration done right so far?
Richard Lazarus: The administration has quickly and effectively sought to restore the many environmental protection requirements that the Trump administration sought to roll back during its four years in office. On the administration’s first day, President Biden rescinded the many environmental executive orders issued by President Trump, instructed federal agencies to review for possible repeal the hundreds of environmental rollbacks issued while Trump was president, and asked the Justice Department to seek stays of pending litigation throughout the country in which the Department had been defending the lawfulness of those rollbacks.
The Biden administration has simultaneously taken significant steps to develop new regulatory programs that not only restore the environmental protections repealed during Trump’s presidency, but to replace them with even more ambitious requirements. Addressing climate change and addressing the needs of environmental justice communities in the United States have been two important priorities of the new administration.
Finally, the president has successfully appointed highly qualified individuals to important environmental policymaking positions in the White House and at the many federal agencies charged with administering the nation’s environmental laws.
HLT: What has it gotten wrong?
Lazarus: A significant part of the administration agenda for addressing the pressing problem of climate change depended on congressional enactment of its proposed “Build Back Better” budgetary legislation. That legislation, if passed by Congress, would have promoted the kind of dramatic decreases in greenhouse gas emissions from both industry and motor vehicles necessary to put the nation back on a pathway to avoid some of climate change’s worst consequences. Yet, even as our nation and the world are already bearing witness to the devastation climate change can cause, the administration was unable in the final months of its first year in office to secure the necessary support within its own political party in Congress to secure the legislation’s passage in the Senate. It is hard to know, even with the benefit of hindsight, how the administration might have succeeded, but the disappointment remains enormous as do the lost opportunities.
HLT: What has the administration not addressed yet that it should?
Lazarus: This is a hard question to answer. The administration has been a flurry of activity as it has simultaneously sought to undo the widespread damage done by the Trump administration, while developing even more ambitious programs to address the environmental problems that have gotten far worse over the past four years. It is an enormous undertaking and it is hard to find fault in the resulting shortfalls.
Addressing climate change and the needs of environmental justice communities have been two important priorities of the new administration.
With that caveat, there is reason for concern that the administration’s initial commitment to promoting environmental justice – ensuring that the environmental protection needs of the most vulnerable populations within our country – has taken a backseat to other administration priorities, especially as the nation’s economy has struggled to get back on its feet. Another area in which there was initially much promise but relatively little has since happened concerns the potential for the federal government’s financial regulators, like the U.S. Securities and Exchange Commission, Treasury, and the Federal Reserve Board, to require industry, including financial institutions such as banks, to account for the risks associated with climate change in their public disclosures and their investment decisions. The economic incentives generated by such financial disclosure requirements should result in substantial reductions in greenhouse gas emissions, even in the absence of formal greenhouse gas emission limitations.
HLT: What are the biggest challenges the administration faces to its agenda going forward?
Lazarus: With the failure to pass the Build Back Better budget bill, Congress has already proven to present a major obstacle to the administration’s ability to press its environmental agenda. The problem will, however, become even far worse should the Republican Party take over the leadership of either the House or Senate following the mid-term elections next November, let alone both chambers. Years ago, of course, the Republican Party played a very important and constructive role in shaping the nation’s environmental laws and promoting their historic success. But there seems to be little, if any, commitment to environmental protection remaining in that party’s leadership today.
The second biggest challenge the Biden administration will likely face is within the federal judiciary. In the absence of new legislation enacted by Congress, the administration is relegated to working with increasingly only federal environmental statutes to craft its regulatory programs. Many federal judges today, however, especially those appointed by President Trump, have already exhibited a proclivity to rule that existing statutory language is insufficient to support the kinds of ambitious programs President Biden has concluded are essential to address compelling problems like climate change. The Supreme Court in particular appears to be an especially unwelcome forum for the Biden administration. The justices have already granted review in an important Clean Air Act case in which there is a very real risk that the justices will issue a ruling preemptively cutting back on the Environmental Protection Agency’s authority to regulate greenhouse gas emissions from coal-fired power plants even before the new administration has yet to issue any regulations.
Read the series Weighing President Biden’s first year