Since taking office, President Biden has positioned himself as the antidote to Trump on climate, passing sweeping executive orders reversing the previous administration’s actions and launching aggressive infrastructure projects meant to bring the country into a low-carbon future. But moves made by the administration in two high-profile legal cases last week are more in line with Trump and his support of polluters and deregulation.
The actions center around two high-profile climate cases that the Trump administration looked to quash—and which the Biden administration appears bent on crushing, too. One involves a group of kids and young adults suing the government for not acting on climate, with lawyers arguing it infringes on their constitutional rights. The other centers around the legality of the Dakota Access pipeline, a fossil fuel project many advocates hoped Biden would rescind permits for. How the administration intervened in them last week is a startling indication that it may not use the courts to aggressively advance climate action despite a campaign promise to do so.
Courts have become a central battleground over climate change in recent years. Individuals, tribal nations, and cities have all pushed various suits that attempt to rein in carbon emissions and hold oil companies financially liable for the damage their products have wrought as the climate crisis worsens.
“The court system has an essential role to play in addressing the climate crisis, and Biden has promised to hold polluters accountable for the damage they knowingly caused,” said Kassie Siegel, the Climate Law Institute director at the Center for Biological Diversity. “The court system is the number one venue in which you do that—it’s all about accountability.”
That’s why the two moves from the administration last week are so worrisome. The first sign of trouble came last Wednesday, when the Biden administration announced that it had asked a district court to preemptively reject a new attempt to sue the U.S. government from a group of 21 young people. The lawsuit, known as Juliana v. United States, alleges that the federal government is responsible for violating these kids’ rights and endangering their futures because of its failure to act on climate.
The Juliana suit was originally filed in 2015, and at this point has been through three separate administrations. The goal of a sweeping lawsuit like Juliana, explained Julia Olson, the lead attorney on the case, is to have a court “say that the national energy system in its current form is unconstitutional.” This would provide a groundbreaking court decision that the federal government could then use to create new standards for its energy system—akin to what the landmark Brown v. Board of Education decision did for school segregation.
Last year, the Ninth Circuit Court rejected the original lawsuit, finding that the kids lacked standing to bring the suit against the government. In March, the original plaintiffs essentially tried to go back to the drawing board to narrow their complaint and try again for success with different parameters; it’s this move that the Biden administration wants to squash.
What’s notable about the administration’s move is how decisive it was. It takes time, Siegel explained, for most administrations to relay their policy goals down to the lawyers actually carrying them out in the courts. She said usually there’s some “inertia” in the early months as a new administration straightens out its priorities and lawyers figure out what’s what. The Biden administration could have sat back and allowed the kids in the Juliana case to try and regroup in the lower courts. Instead, it decided to send a message.
“It’s kind of hard to argue in April with something so high-profile that this wasn’t a conscious decision,” Siegel said. “The Biden administration did not have to do what they did with Juliana, and they shouldn’t have done it. Those young plaintiffs should be entitled to amend their complaint.”
Olson said that the Juliana legal team has asked “multiple times” since Biden took office to meet with the suit’s defendants inside the federal government and speak about options for the case moving forward, including settlements that would allow the administration to make some sort of statement on the government and climate. “We’re disappointed that the administration hasn’t really been willing to sit down and have a conversation with us about the case moving forward,” she said.
Just two days after the Juliana announcement, the Biden administration made another move that drew widespread outcry on another major case—this time, the lawsuit brought by the Standing Rock Sioux against the Dakota Access Pipeline. Unlike the Juliana case, this lawsuit has seen a lot of success. A judge last year reversed a key permit for the pipeline, ordering a new environmental impact statement to be conducted. Advocates had hoped that the Biden administration would take action to shut down the pipeline, especially following the president’s executive order to shut down the Keystone XL pipeline on his first day in office. But on Friday, the administration said it would keep the pipeline operational while a new permit was being issued. That essentially allows the project to keep transporting oil without a federal permit.
“Taken together, the administration’s actions last week really do call into question its commitments,” Nikki Reisch, the director of the climate and energy program at the Center for International Environmental Law. “This is an administration that has announced a commitment to address environmental justice, has positioned itself as a leader on climate change, has acknowledged the need to end fossil fuel subsidies, and yet they have failed to seize an opportunity to really use the power of the presidency to respond to the climate crisis.”
Reisch said the Dakota Access case, in particular, represents a missed opportunity for the administration. “A U.S. court recognized that the permits were improperly issued, and the president would have been well within his authority to suspend operation of a pipeline that is arguably really operating at grave risk to people and the environment,” she said. “[The administration] failed to seize that opportunity. It’s disappointing.”
While Biden has certainly broke with Trump on a wide array of climate policies, you can see echoes of the former administration—and the oil and gas companies that Biden has vowed to hold accountable—in both decisions. Standing Rock attorney Jan Hasselman called Friday’s move to keep the Dakota Access Pipeline operational “the same decision as the previous administration.” Siegel said, meanwhile, that the administration’s move with Juliana is “adopting the extreme argument from Trump and the polluters” on not allowing the kids to have their day in court.
“The number one strategy of polluters and their surrogates in government, including Trump, is to keep climate litigants out of court in the first place, and the number one way they do that is to argue that climate litigants don’t have standing,” said Siegel. “Climate litigants need to have access to our court system. It’s a basic pillar of democracy.”
Moving forward, Reisch said, the Biden administration will have to find a way to use the courts to advance climate action, since we’re going to need all the solutions we can get.
“These two actions together signal a posture that suggests a view that business as usual governance is an adequate response to the climate crisis, and it absolutely is not,” Reisch said. “Unless the Biden administration changes its conduct, it will not only fail to deliver on the many promises that were welcomed by the environmental justice and climate justice communities, but it will really end up being complicit to keeping the world on a trajectory that’s hurtling toward climate catastrophe.”