Consider the Climate Equity Act of 2019. The CEA was, I believe, the first concrete piece of legislation proposed as part of the Green New Deal. Unfortunately, it illustrates several of the problems with progressive idealism. The CEA is moralistic rather than strategic. It does not take policy analysis seriously; it assumes that Congress can simply write a law requiring justice and that justice will magically appear. In practice, the CEA will do little to promote justice, but it will put a powerful weapon in the hands of opponents of a clean energy transition.
The purpose of the CEA is to ensure all people a right to a healthful environment, and to address systemic environmental injustices and inequities. To achieve these goals, the CEA imposes extensive procedural and analysis requirements on federal rules that affect “frontline communities”, which the act defines as low income communities, indigenous communities, communities of color, deindustrialized communities, vulnerable elderly communities, unhoused populations, people with disabilities, and communities dependent on fossil fuel industries.
Protecting frontline communities is a worthy goal. However, the federal rulemaking process is already too cumbersome to address a problem like climate change, which will require rapid, economy-wide changes. The CEA will make the problems with the federal rulemaking process much worse. The CEA 1) requires agencies to engage in a comprehensive review of proposed rules and possible alternatives to proposed rules that minimize negative economic, environmental, and health consequences on frontline communities, or maximize benefits to these communities, 2) fails to specify a clear standard for agencies to use when evaluating alternative rules, and does not explain how conflicts between or within frontline communities should be resolved by government agencies, and 3) gives members of any aggrieved frontline community the right to judicial review, including the right to block enforcement of agency rules.
If progressives care about preventing climate change, this is insane. Requiring agencies to evaluate multiple options using vague standards and giving a wide array of groups easy access to the courts will turn the CEA into a powerful weapon against all federal rulemaking, including rules that are essential for stopping climate change.
For example, creating a renewable energy system may require construction of a new network of high voltage power lines to shift electricity from areas where the wind is blowing and the sun is shining to areas where it is calm or cloudy. It is far from clear that our political system will be able to overcome the NIMBY forces that will predictably resist every power line location decision.
Instead of helping to solve this problem, the CEA will make it far worse. The government will have to investigate the impact of multiple power line routes on different frontline communities. There will be conflicts between frontline communities and within such communities. The law is silent on how these conflicts should be resolved, but everyone gets to go to court. Fossil fuel producers resisting clean energy growth will have no trouble creating “astroturf” organizations to challenge rules they dislike. The same problems will arise with siting decisions for wind and solar farms and the location of dams for hydro power. Stalemate rather than progress will be the order of the day.
Even rules limiting the burning of fossil fuels will be snarled in lawsuits. Suppose EPA tries to limit the burning of coal to generate electricity. Such a rule would be vulnerable to attack by coal producers (recall that communities dependent on fossil fuels are frontline communities). Coal producers or their allies would not have to argue that regulation is impermissible, they would just have to argue that the agency failed to consider an alternative rule that would be less economically harmful to communities dependent on fossil fuels – say, a rule with a somewhat slower timetable for reducing coal use. On the other hand, children with asthma could sue the agency for not reducing coal use fast enough. (Are children with asthma covered by the CEA? This question seems to turn on whether asthma counts as a “disability” under the law, because people with disabilities are a frontline community. No matter how an agency decides this question, it will be vulnerable to a lawsuit. The possibilities for legal wrangling and delay are literally endless.)
Decarbonizing the United States economy will be a massive undertaking, and even progressives who care about a just transition to a carbon-free world should think twice about turning administrative procedure into an all-purpose weapon at the disposal of anyone seeking to block change. This doesn’t mean that we should ignore the very real burdens imposed on disadvantaged groups. But instead of adding more veto-points to our already creaky environmental rulemaking system, we need to figure out what types of assistance different communities need and get it to them directly. Fossil fuel workers and communities need job training, relocation assistance, pensions and other forms of assistance. Unhoused populations need housing. Giving people the assistance that they actually need will do far more to alleviate hardship than suffocating the rulemaking process in a blanket of CEA lawsuits.