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Has Build Back Better Become Build Back Never? What Does It Mean for US Climate Policy?

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By Joel B. Stronberg

· 9 min read

Joe Manchin is a lying liar who lies.

Jennifer Taub, law professor and author of “Big Dirty Money.”

I dislike making predictions in January about what to expect in October.  Although I have my suspicions about what’s lurking out there and getting ready to pounce, the value of year-ahead prognostication is mostly entertainment.

Sadly, I’ve lost my sense of humor when it comes to what We the People are doing to the planet and how it bodes badly for current and future generations. However, certain times and events demand to be discussed ahead of their potential.

If I’m wrong, I’m wrong. However, if I’m right and it moves you to action, the only downside would be…um...give me a minute?

Oh, right—there is no downside. So, with this understanding, I’ll continue.

My first prediction of 2022 is that West Virginia will have an outsized impact on national climate policy in the current climate year (CCY)—and not in a good way.

The Mountain State’s senior senator, Joe Manchin (D), has single-handedly stopped President Biden’s proposed climate action plan in its tracks—along with voting rights, Medicare reform, and securing a safety net under the least fortunate of us.

Climate change and Biden’s response to it played prominently in his successful presidential campaign. As a candidate, he reached out to leading progressives like Senator Bernie Sanders and Representative Ocasio-Cortez and moderates like John Kerry. His charge to them was to devise a strategy equal to the task of decarbonizing the US economy.

As president, Biden’s begun to implement the plan through executive action. He’s challenged Congress to pass the critically needed legislation supporting his agenda—a portion of which was made a part of the bipartisan infrastructure framework (BIF), e.g., charging stations for electric vehicles, passed in November. 

The bulk of Biden’s climate proposals is incorporated within the budget reconciliation package, also called the Build Back Better Act (BBB). At this point, a more accurate name of the legislation would be the Build Back Never Act.

I don’t know why Manchin is doing what he’s doing. My guess is it’s a combination of things—some ethical, others not so much [1].

Let me be clear. I’m not calling Manchin a liar or a coward as others have. Neither am I following Representative Omar’s (D-MN) lead in calling his reasoning bullshit.

I do believe, however, there’s a potential conflict between his business interests and his chairing the Senate Energy and Natural Resources committee. I would add that it’s a potential conflict shared by too many members of Congress on both sides of the aisle.

According to a Sludge report, at least 100 US House members are invested in fossil fuel companies, e.g., oil and gas wells. The 100 breaks out as 59 Republicans and 41 Democrats—all of whom sit on committees having to do with energy, natural resources, federal lands, commerce, et al.

For the record, I’m neither a Democrat nor a Republican. I consider myself a staunch independent but fully recognize that I might appear to be supportive of the Democrats and dismissive of the Republicans.

As I see it, the problem is that too many Republican lawmakers are trying to trivialize Earth’s warming. I would be just as eager—probably more eager—to support any Republican initiative that would help relieve the threat to the planet posed by rising temperatures, address the importance of conserving natural resources, and stop the production and use of one and done plastics.

For example, I hardily endorse Bruce Westerman’s (R-AR) proposed Trillion Trees Act. Although I admittedly have questions about it, like where are these trillion trees to be planted and by whom? Natural solutions like tree planting and the use of cover crops should be brought into the game—just as electric vehicles, wind turbines, and distributed solar with battery backups should be.

Is planting a trillion trees the answer to the continued use of coal and other fossil fuels? Should it relieve polluters of any obligation to stop what they are doing? No and no, but it should be included in the national policy quiver.

Manchin has mentioned the possibility of breaking out the climate and energy provisions in the reconciliation process and putting them in a stand-alone piece of legislation. Is a stand-alone bill in the works? Not as far as anyone knows—or is willing to say.

There are some things to consider before getting too excited about the possibility of a separate piece of energy and environmental legislation. Manchin’s various objections to the BBB provisions won’t go away. He’ll still want to know where the money to pay for them over a ten-year period.

The funds could come from taking back a portion of the largesse Trump and Trump-Republicans showed to corporations during his administration. Passage of the Tax Cuts and Jobs Act lowered the corporate tax rate from 35 percent to 21 percent. It came with the promise that its economic benefits would tinkle down to raise average householder income by $4,000.

To date, there’s no evidence that the cuts have benefited the lives of everyday Americans. Even if justified, Senator Manchin has taken any raise in the corporate tax rate off the table.

Manchin is on the record favoring tax credits for solar and wind. His support for other mechanisms designed to speed the introduction of clean energy sources is very questionable. Before the ink was dry on the BBB, he succeeded in knocking out a national clean electric standard.

The standard would have paid utilities to switch their generating sources from fossil fuels to solar, wind, and other environmentally-friendly sources. Manchin has also labeled as wrong and un-American Biden’s proposed extra credit of $4,500 available to purchasers of an electric vehicle built in the US with union labor.

I think it fair to say that the coal-state Senator would undoubtedly expect something in return for any largesse shown clean energy sources. In this particular case, one of Manchin’s “quid” to the progressive’s “pro quo” would be to drop any penalties owed the nation for releasing methane into the atmosphere from any of its more than 2,000,000 abandoned and active oil wells—tens of thousands of which are in Manchin’s backyard.

I’ve written multiple times that I thought Congress would enact some version of the BBB. I now have serious doubts it will happen.

Manchin returned from the Christmas recess, appearing even more inscrutable than when he left. Democratic leaders in the Senate are now suggesting that their ambitious legislative agenda is in limbo, and they don’t see a breakthrough happening any time soon. It’s a circumstance much to Manchin’s liking.

The no votes and actions of West Virginia’s senior senator will not be the only things influencing the CCY. They may not even be the most devastating. That honor could go to the US Supreme Court (SCOTUS) when its West Virginia v. EPA decision is announced.

West Virginia, along with more than a dozen largely red states and coal companies [2], have successfully petitioned SCOTUS to rule on the matter of EPA’s authority to regulate carbon and other greenhouse gases under the Clean Air Act.

The case stems from challenges to the Trump administration’s Affordable Clean Energy Rule (ACE). It harkens back to the Obama-era Clean Power Plan (CPP) finalized in 2015 but that never came into force because of legal challenges.

The CPP was drafted after SCOTUS’ 5 to 4 decision in Massachusetts v. EPA. The case secured EPA’s authority to regulate carbon and other harmful greenhouse gases if the Agency concluded that their emission would endanger the health and welfare of society.

Following the decision in Massachusetts, EPA made the endangerment finding and then proceeded to draft and finalize the CPP, which would have required utilities to move away from fossil fuels using solar and other clean energy technologies. Deal done, right? Not quite.

Today’s SCOTUS is much differently aligned than the court that ruled in Massachusetts. As I’ve written multiple times, Trump’s most destructive and long-lasting impact on the environment was his appointments to the federal bench. Before leaving office, Trump appointed nearly a quarter of all federal judges—including three conservatives on the country’s high court.

The four dissenting justices in Massachusetts were Scalia, Roberts, Thomas, and Alito. Chief Justice Roberts believed the plaintiffs in the case shouldn’t have been granted the standing to sue because the claimed harm lacked specificity. Saying that the health and welfare of society-at-large was hurt was not enough for Roberts.

In his dissenting opinion, Scalia called the majority’s interpretation of the Clean Air Act a capacious pretense that was so general as to have little meaning. Justice Kennedy stepped outside his usual conservative boundaries to be the all-important swing vote in the case. He’s now gone.

The current make-up of the high court is decidedly conservative. It’s a majority of textualists [3]. In its most basic form, textualists believe if something is not specifically within the four corners of law as written, it can’t be interpreted as being there by the courts.

Another critical question that may be addressed in the West Virginia opinion is whether Congress can delegate authority to executive agencies. Congress often writes deliberately vague legislation. It generally does so for two reasons. First, vagueness can protect the “details” from political debates. Second, Congress doesn’t have the expert staff to sharpen the focus of a bill.

How likely the Supreme Court will be in reversing Massachusetts and striking down the delegation doctrine in the West Virginia case is difficult to handicap. If the six conservatives are true to their textualist roots, then the Massachusetts decision could be overturned in whole or in part.

Reversing the Massachusetts decision would have far-reaching implications. It would, in essence, strike down how Congress and federal agencies go about the business of government. Congress is already so grid-locked that governing has become almost impossible. What would the demand for greater explicitly do to a body so divided that it can’t agree on the big stuff, let alone the details?

Manchin’s refusal to vote “yes” on the Build Back Better Act is leaving national climate policy up to the White House. In these partisan times, leaving climate policy up to presidents makes no sense — that is, if it ever made sense. What one does, the other undoes, and so on and so on.

Make no mistake, if the White House changes parties in 2024, Trump or one of his acolytes will tear up as many of Biden’s orders as possible. For the rest, they’ll announce new rulemakings.

These next weeks and months will see decisions of huge climate-consequence coming out of the federal judiciary and the White House. Why not Congress? Ask Senator Manchin.

Energy Voices is a democratic space presenting the thoughts and opinions of leading Energy & Sustainability writers, their opinions do not necessarily represent those of illuminem.


[1] Does receiving $492 thousand a year from his holdings in Enersystems, a company that sells coal to power plants, count as a conflict?

[2] The lead case is West Virginia v. EPA It is consolidated with North American Coal Corp. v. EPAWestmoreland Mining Holdings v. EPA, and North Dakota v. EPA.

[3] Another term applied to conservative jurists is “originalist.” An originalist who gives primary weight to the text and structure of the Constitution. Textualists often are skeptical of the ability of judges to determine collective "intent."

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About the author

Joel B. Stronberg is a senior executive and attorney and the founder and principal of The JBS Group, a Washington, DC consulting firm. Joel is currently advising the Legal Pathways to Deep Decarbonization project at Columbia University’s Sabin Center along with his other clients.

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