The continuous whipsawing of climate change policy

With his recent designation of Rep. Alexandria Ocasio-Cortez (D-N.Y.) and former Sec. of State John Kerry to lead the Democrats’ climate change panel, Joe Biden, the likely Democratic presidential nominee, promises to continue whipsawing the nation’s environmental policy.

Webster’s Dictionary defines “Whipsaw” as to “victimize in two opposite ways at once.”

Democrats scare us into believing the world is soon coming to an end. To avoid catastrophe, Democrats propose replacing fossil fuels with their Green New Deal, accompanied by massive regulatory programs similar to the Obama administration. Their goal is to be firmly in charge of the economy.

Republicans argue that environmental controls are government overreach used to kill jobs, increase costs to consumers and create a socialist state. The Republicans’ goal is maximum profit for business and lower taxes on the rich.

Environmental policy is merely the victim in the middle of two opposing forces.

Trapped in the whipsawing are the American people who support stronger environmental protections. Polls find citizens are willing to pay for additional environmental protections, as long as it’s not costly, i.e., as long as it strikes a balance between the economy and environment. 

Protecting America’s environment started in the 1970’s as a bipartisan effort to address real issues such as clean air and water pollution, hazardous waste, contaminated lands and dangerous chemicals. The environmental votes in Congress, in the 1970s, were by large, bipartisan majorities. The last of these bipartisan votes was the Clean Air Act of 1990 (“CAA”), which passed the Senate 89-10 and the House 247-154. There have not been any new, major environmental laws since 1990.

The environmental laws form a comprehensive approach to environmental protection, absent one law. Climate change is the missing law. It has been a divisive issue since first proposed in1992. Bill after bill has been introduced. None have passed Congress. Rather than the two sides reaching out to find a legislative compromise, both sides employed a “winner take all” strategy. First, Democrat-led states asked the Supreme Court to find authority to regulate climate change under the CAA, a law that even its sponsor, Rep. John Dingle (D-Mich.), never intended for regulating climate change.

The Supreme Court, acting more like a legislature than a court, found the definition of “air pollutant” in the CAA so broad that it could be used to regulate climate change. Based on the court’s decision, the Obama administration issued a large number of climate regulations covering automobiles and trucks, the utility, energy, manufacturing and other stationary sources, boilers and waste incinerators. The cost of these regulations was estimated by the agencies to be $60 billion.

With a massive regulatory structure being developed, Republicans used the same tactics as the climate supporters, litigating against all the Obama administration-issued climate regulations. While litigation was successful on a few regulations, its primary success was delaying implementation of the regulations until the Trump administration took power. Once in office, President Trump, immediately began revoking Obama-era climate regulations. Boiling-down an exhaustive New York Times compilation, the Trump administration completed the roll-back of 30 Obama-era climate-related regulations and proposes to roll-back another 26. 

The continuous conflict over climate policy is whipsawing U.S. environmental policy. Neither side prevails. Policy radically changes based on the administration in power. This is a stalemate on an issue that  67 percent of adults believe the U.S. government is not doing enough to address.

More radical whipsawing may be ahead. With AOC and John Kerry leading Biden’s climate task force, a Democratic victory means replacing Trump’s deregulatory agenda with significant aggressive climate change regulation, or climate legislation should the Democrats have a majority in both houses of Congress.

Should Trump be reelected, and having a conservative Supreme Court, it is likely he will complete his climate change deregulatory agenda, short of the Democrats obtaining a super-majority in Congress.

When different administrations ignore the absence of legislative authority and rely exclusively on executive power or judicial overreach to issue major policy decisions, those decisions can be easily overturned by the next administration. Such actions are not governing; they are whipsawing policy.  

Our nation needs to return to a constitutional process in which each branch of government recognizes the limits of its constitutional authority. Our Constitution clearly places all legislative power in Congress. Only Congress can develop the balance between the environment and our economy that the American people seek. Until Congress acts, the actions of courts and agencies merely allow us to imagine that we have a national climate policy. Unfortunately, this illusion only lasts until the next administration.

William L. Kovacs is the author of “Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens” and a former senior vice president for the U.S. Chamber of Commerce.