'We Have to Be Creative.' How the Biden Administration Is Responding to the SCOTUS Climate Setback

Activists with the Climate Action Campaign, protest outside the Supreme Court after the court announced its decision in West Virginia v. EPA on June 30, 2022. Credit - Francis Chung—Politico/AP

You might expect that Gina McCarthy, President Joe Biden’s national climate advisor, would be frustrated this week.

The Supreme Court dealt a significant blow on Thursday to what was once the most promising avenue for tackling climate change, curtailing the authority of the Environmental Protection Agency (EPA) to regulate emissions from the power sector. McCarthy has been at the center of climate policy efforts for the last decade, and as the head of the Obama Administration’s EPA, she crafted the agency rule at issue in the Court’s ruling.

Yet in conversation in the days leading up to the ruling, McCarthy was surprisingly optimistic—not that the ruling would go the Administration’s way, but rather that the White House could chart a path to slash emissions even if it didn’t. “We’ve set very solid goals, we’re making significant progress on the transition to clean energy,” she told TIME on June 28. “And that is not going to live and die by the Supreme Court’s decision.”

To meet the White House’s goals, she said, the Administration needs to get “creative” and find novel ways to galvanize the energy transition. That includes inventive use of regulations at places like EPA, as well as the Administration’s engagement with the private sector, use of its own purchasing power, and use of the Defense Production Act to accelerate the production of domestic clean energy technology, she says. “It can’t just be about using regulations or using Congress to fix this; to actually continue accelerating, we have to be creative,” she said, one of at least ten times she used the word creative in the course of the conversation.

It is certainly true that EPA power plant regulations are far from the only—or even the most important—tool in the climate policy toolkit in 2022. But in order to get the U.S. anywhere near the Administration’s goal of slashing emissions in half from 2005 levels by 2030, the creativity that McCarthy speaks about needs to be matched with speed and focus. There’s a lot to do and little time—not to mention many distractions.

‘It was an entirely different conversation’

One of the reasons McCarthy is hopeful, she says, is the government now has a wider range of options for how to address climate change than when she first engaged in the fight.

After failing to pass climate legislation in his first term, President Barack Obama turned to the EPA to pass new regulations that would cut emissions from power plants. With McCarthy as its administrator, the agency issued the Clean Power Plan in 2015. The regulation set state-by-state emissions reduction standards for the power sector and was designed to shut down coal-fired power plants—though states were left to decide on their own how to meet their targets. While it never actually took effect as it wound its way through the courts, it quickly became the centerpiece of Obama’s climate strategy.

On the surface, the circumstances today look similar. Congress continues to drag its feet on climate funding and the Administration is turning to second-best options to regulate emissions. But McCarthy says the picture is actually radically different. While large utility companies opposed the Clean Power Plan, they have since embraced the need to transition to clean energy and have partnered with the Biden Administration. And with climate change now seeping into a range of other areas—from trade to agriculture—the Administration no longer needs to rely on narrow authorities under the Clean Air Act. “During the Obama Administration, you know, it was so much earlier on in the climate challenge,” said McCarthy. “When I ran the EPA, it was the linchpin, and the options were limited. It was an entirely different conversation.”

In discussing climate actions Biden has taken that wouldn’t have been imaginable during the Obama years, McCarthy cites his use of the Defense Production Act, which will allow the government to coordinate with industry on the production of a range of clean energy technologies including solar panels, heat pumps, and insulation. The Biden Administration’s commitment for the federal government to transition its fleet of cars and trucks to zero-emissions vehicles shows how it’s setting a market signal for industry to transition, she says. And she touts the work the Administration has done to expand offshore wind, bringing together state governments and the private sector to help rapidly expand the clean energy source.

Despite the Supreme Court ruling in West Virginia v. EPA, the EPA’s work remains a key component of the Biden Administration’s strategy. While the Supreme Court significantly curtailed the agency’s authority to make major changes to the nation’s power sector under a particular provision of the Clean Air Act, it didn’t limit the agency from addressing climate change in other ways. On Wednesday, EPA Administrator Michael Regan said on a TIME-moderated panel at the Aspen Ideas Festival that following the Supreme Court ruling, the agency planned to show the industry other environmental regulations it can implement under its remaining authority. “We have a suite of regulations that we can present to the power sector in one fell swoop, looking at regulating water, waste, and air quality,” he said. “And the power sector then can take a look at the economics to comply with those rules at one time, or they can say ‘hey, to hell with the past, let’s invest more quickly in the future.'”

It’s not clear that all of these so-called ‘creative’ measures put the Administration on track to meet its emissions reductions goals. It’s hard to have an up-to-the-minute accounting of where all of these initiatives leave those targets, but an in-depth analysis from the Rhodium Group earlier this month that takes account for a range of policy developments suggests it will be tough without Congress’ help. Right now, without further policy action, emissions will remain flat and lead to a decline of 17-25% below 2005 levels in 2030, the report finds. Congressional legislation that would provide tax incentives for clean energy deployment, among other things, combined with much of the work McCarthy mentions, could get the U.S. above the 50% reduction threshold that the Administration promised.

Congress does appear likely to enact some form of bipartisan climate spending bill, though the exact contours remain unclear. McCarthy, of course, says she’s optimistic. “This is all about getting to a 50% reduction in greenhouse gases by 2030,” she says. “We think that the work that we’re doing now will get us very close to that.”