Harvard Law Today asked these questions as part of a series that examines the first year of the Biden presidency. 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 TodayWhat has the administration done so far?
Richard Lazarus:The Trump administration attempted to roll back many environmental protection standards during its four-year tenure. The Trump administration failed to do so quickly and effectively. On the administration’s first day, President Biden rescinded the many environmental executive orders issued by President Trump, instructed federal agencies to review for possible repeal the hundreds of environmental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taken significant steps to develop new regulatory programs that not only restore the environmental protections repealed during Trump’s presidency, but to replace them with even more ambitious requirements. The new administration has made it a priority to address climate change and address the needs of American environmental justice communities.
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 is the problem?
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 impossible to know how the administration succeeded, even with the benefit o retrospective, but the disappointments are just as great as the missed opportunities.
HLT: What is the administration ignoring that it should be doing?
Lazarus:This is a difficult question to answer. This administration has been a flurry as it simultaneously tried to undo the extensive damage done by Trump’s administration while also developing ambitious programs to address environmental problems that have gotten worse over the past four year. It is a massive undertaking, and it is hard not to find fault with the resulting shortcomings.
The administration’s two top priorities were to address climate change and the environmental justice needs of communities.
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. Even if there are no formal greenhouse gas emission limits, the financial disclosure requirements could generate significant economic incentives that will result in substantial reductions of greenhouse gas emissions.
HLT: What are the biggest obstacles facing the administration in advancing its agenda?
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. If the Republican Party is elected to the House or Senate leadership after the midterm elections next November (or both), the problem will be even worse. 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 federal judiciary is the second largest challenge that the Biden administration will likely face. In the absence of any new legislation from Congress, the administration will have to rely on federal environmental statutes for its regulatory programs. However, many federal judges, particularly those appointed by President Trump have shown a proclivity for ruling that the existing statutory language is not sufficient to support the ambitious programs President Biden believes are necessary to address urgent problems like climate change. The Biden administration seems to find the Supreme Court a particularly unwelcome venue. 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