December 19, 2019 – “It was the best of times; it was the worst of times.” That pretty much sums up the ten years from January 2010 to January 2020.
As the decade began, Barrack Obama was in the White House and the Democrats controlled Congress but were one vote short of a filibuster-proof majority in the House. Under Nancy Pelosi’s leadership, the Waxman-Markey bill had passed the House, but it never made it to a vote in the Senate. When the Democratic majority in the House was swept away in the 2010 elections, any possibility of federal climate legislation died for the rest of the decade.
The failure of climate legislation highlighted the importance of administrative action. In August 2012, following up on an early agreement with carmakers, the government issued a rule imposing an aggressive plan to reduce greenhouse gas emissions from vehicles. And once the 2012 election was safely behind it, the Administration turned to an array of other environmental measures including the Clean Power Plan limiting greenhouse gases from power plants; the Water of the United States rule (WOTUS) redefining federal jurisdiction over streams and wetlands; and rules governing methane emissions from the oil and gas industry. Most of these rules were still in litigation at the time of the 2016 election. Obama also helped engineer the Paris Agreement on climate change.
For the first time, China, India, and other developing countries took on some of the responsibility for addressing climate change. Things seemed to be an upward trajectory.
The 2016 election was a brutal blow to those expectations. In the campaign, Donald Trump had proclaimed his love for fossil fuels, his rejection of climate science, and his antagonism to regulations of all kind. His surprise victory augured doom for U.S. climate policy.
The election results were shocking, but there’s an important point to be made. The prior decade had had its own big surprises, a financial collapse and the election of our first African American President, neither of which were on anyone’s horizon at the beginning of that decade. The 2010s had the 2016 election. We can safely assume that somewhere in the 2020s there will be another shocking surprise, good or bad.
What happened after the 2016 election, however, was not a surprise. As soon as he took office, Trump issued a string of executive orders requiring reconsideration of key Obama rules. Congress gave him a hand by using the Congressional Review Act in a seemingly random way to eliminate regulations issued in the six months before the election.
Agencies like EPA have put these directives into effect. As the new decade is about to begin, it is unclear how the courts will rule on these major deregulatory efforts.
In the meantime, Trump also announced his intention of withdrawing from the Paris Agreement.
Despite Trump’s efforts, the use of renewable energy continued to expand and the use of coal continued to slide. Disregarding his fervent support of the coal industry, utilities considered the fuel no longer economically viable. As prices for natural gas and renewable power plummeted, coal-fired power plants fell by the wayside. While coal was responsible for generating 45% of U.S. electricity at the start of the decade, the percentage had fallen to 25%.
While the federal government had turned away from climate action, the same was not true of the states. California reauthorized its carbon trading system by a resounding majority in the state legislature. Other states like New York, Hawaii, Massachusetts, Oregon, and Washington also acted. And major firms announced their plans to radically cut or eliminate their own carbon emissions.
Public opinions polls showed increasing public awareness of the reality and seriousness of climate change, and politicians began to respond to this new-found fervor. Perhaps not coincidentally, the reality of climate change became ever harder to ignore, with a extreme events from wildfires to floods increasingly identified as being linked to climate change. The five years with the highest recorded temperatures have all been in the 2010s.
As the decade ends, we are balanced on a cusp. If the Republicans hold the White House and the Senate, the judiciary will have a strong conservative orientation for years to come. Not only will there be no climate action by the federal government, but there will be increasing attacks by agencies like EPA and the courts themselves on state climate regulations.
In other words, we will be at risk of losing even what aspects of climate action are in place today.
If the elections next year go the other way, we can begin rebuilding federal policy and consider bolder steps forward.
The same is true across a host of other environmental issues. Either way, the vote on November 3, 2020, will have lasting consequences for the planet.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he is also a pioneer in the emerging field of Disaster Law, which examines legal issues related to society’s ability to deal effectively with the aftermath of catastrophes and the risk of future disasters.
Legal Planet, a collaboration between faculty at UC Berkeley School of Law and UCLA School of Law, provides insight and analysis on energy and environmental law and policy. www.legal-planet.org