Commitments at COP26, Supreme Court Revisits EPA’s Authority, and More

As COP26 gets underway, the United States is looking to redeem itself after former President Donald Trump formally withdrew from the Paris Agreement last year. The United States already has committed to a global pledge to end deforestation by 2030: more than 100 countries, including Brazil and Indonesia, have pledged $12 billion toward the effort, and President Joe Biden has agreed to work with Congress to spend an additional $9 billion. The United States also aims to reduce methane emissions as a cosponsor of the Global Methane Pledge—which nearly half of the world’s top 30 methane emitters have signed—and through the newly proposed US Environmental Protection Agency regulations targeting methane emissions from oil and gas. Plus, just prior to the start of COP26, the United States and the European Union announced they would develop the world’s first “carbon-based sectoral arrangement” over the next two years to decarbonize heavily polluting sectors such as steel and aluminum while pressuring countries to adopt more robust environmental standards.

But whether the rest of the world will have confidence in the latest climate ambitions of the United States remains unclear, especially given the challenges that Congress has faced in attempting to develop reconciliation legislation with major climate provisions. On a new episode of the Resources Radio podcast, Union of Concerned Scientists Policy Director Rachel Cleetus provides an overview of the main issues at this year’s climate summit and describes how the United States can recommit to global climate action. Cleetus points to unresolved issues from previous conferences, including disagreements over the Paris Agreement rulebook and efforts from developing nations to secure funding for climate finance from developed nations. While noting that strong commitments from big emitters can send positive signals to other countries, Cleetus contends that the United States can spend effort on matching its rhetoric with reality by building up its climate credibility through passing ambitious environmental policies. “We don’t have time to waste on incremental progress, empty promises, or faraway goals,” Cleetus says. “We really need to see real action from countries now.”

Last week, the US Supreme Court agreed to take on a case that could sharply curtail the authority of the US Environmental Protection Agency (EPA) under the Clean Air Act to regulate greenhouse gas emissions from power plants. The court will take a close look at a decision made this January by the US Court of Appeals for the DC Circuit, which concluded that the Trump administration’s relatively permissive Affordable Clean Energy rule relied on a “fundamental misconstruction” of the federal government’s powers under the Clean Air Act. The Supreme Court’s decision to reconsider that ruling has surprised some legal observers, in part because the Biden administration has yet to propose an alternative regulation to replace the Affordable Clean Energy rule and might now have to defend its authority to regulate power plant emissions in the abstract. Given the Supreme Court’s conservative tilt, environmental groups are wary that the ruling—expected by next summer—could imperil climate action.

In a new blog post, RFF University Fellow Nathan Richardson writes that “this could be the most important climate case—and perhaps the most important environmental case—the court will have decided.” Richardson points out that the court’s decision to take on the case already suggests that some justices lean toward constraining EPA’s authority, and he sketches out possible outcomes. A more narrow ruling might make a rerun of the Obama-era Clean Power Plan impossible but wouldn’t totally undermine EPA’s ability to address pollution from power plants. But Richardson also notes that some members of the court appear amenable to a more sweeping decision: they could cite the “major questions” doctrine, which posits that Congress needs to be especially explicit about the power of agencies on issues of major policy significance, or they could revive the “nondelegation” doctrine, which questions the ability of Congress to delegate authority to administrative agencies altogether. “This new case threatens to put the final nail into the coffin of broad climate policy under the Clean Air Act,” Richardson writes. “And the court could do much worse, throwing the entire administrative state into legal uncertainty.”

California has confronted another intense wildfire season this year, which has included the Dixie Fire—the second-largest fire in the state’s history—and fire threats to the state’s historic Sequoia National Park. But blazes that threatened the sequoia trees were controlled, in part because of the use of small-scale prescribed burns to eliminate flammable undergrowth on the forest floor. Now, the state has moved to make it easier to use prescribed burns as a wildfire management strategy: Last month, Governor Gavin Newsom signed a law that creates new legal protections for groups and landowners that deploy prescribed burns, including many that had previously wanted to use the technique but feared possible legal repercussions. The legislation follows another bill that California passed earlier this year that directs the State Fire Marshal to begin the process of establishing a prescribed fire training center. Though controversial, these laws reflect a growing consensus—in California and across the nation—that conventional strategies to address wildfires, such as fire suppression, have not succeeded.

In an article from the new issue of Resources magazine, RFF Fellow Matthew Wibbenmeyer explores the growing trend away from intentionally suppressing wildfires to a strategy oriented around coexisting with fires. Wibbenmeyer lays out why proactive strategies to fight wildfires are essential—given their impacts on people, property, the stability of local energy infrastructure, and air quality across the nation. He also explores why prescribed burns could help, pointing out that a lack of fires over recent decades has caused the landscape to become more homogeneous, which exacerbates the threat posed by wildfires; understories of dense vegetation can spread fire more quickly through densely packed forests. Pointing out that “no single strategy will work,” Wibbenmeyer recommends a combination of various tools, which can include clearing potentially flammable fuels in forests, discouraging construction in fire-prone areas, updating building codes, and investing in electrical equipment that is less likely to catch fire.