The climate crisis is no excuse for backsliding on democracy

The writer is executive director of American Compass

American elites might make greater progress securing the citizenry’s commitment to democracy if they took it more seriously themselves.

They consider climate change one of the highest stakes issues in the United States right now. “No challenge,” intoned President Barack Obama in his 2015 State of the Union address, “no challenge, poses a greater threat to future generations than climate change.” And yet it is here that democracy seems to have become most optional for some.

Obama backed aggressive “cap-and-trade” legislation early in his first term, which fizzled out in the Senate and exacted a major political price. By his re-election campaign in 2012, he was no longer discussing any form of pricing for greenhouse gas emissions. Even after winning re-election, his press secretary averred point-blank that “we would never propose a carbon tax.” 

But in fact, the administration was working to put a price on carbon, promulgating a rule through the Environmental Protection Agency called the “Clean Power Plan” that made use of an obscure provision of the Clean Air Act of 1970 to impose a nationwide cap-and-trade programme on the nation’s power plants.

The wilful misreading of the law was sufficiently absurd that Obama’s own mentor, Harvard law professor Laurence Tribe, likened it in testimony before Congress to “burning the constitution”. Obama never sought congressional approval for the scheme, nor for his international commitment to emissions reductions in the 2015 Paris Agreement, even as these became the cornerstones of federal policy.

With its June 30 ruling in the case of West Virginia vs Environmental Protection Agency, the Supreme Court put a stop to all this, holding that the EPA cannot implement a cap-and-trade programme until the people’s elected representatives in Congress have legislated one. What a teachable moment this could have been, confirming as it does that one must seek and secure the American people’s blessing to transform the entire energy sector at immense cost. The tweet writes itself: “Scotus providing an important reminder that our constitution limits executive power. Presidents must appeal to and respect the decisions of voters.”

Progressives had a less charitable reaction — MSNBC’s Chris Hayes, usually quick to ferret out possible threats to democracy, summarised the mood by declaring the court “a threat to the planet”. To be clear, the ruling was not a constitutional one, holding that Congress could not enact a cap-and-trade programme. The court held simply that Congress had not done so. President Joe Biden could go to Capitol Hill tomorrow and demand that Congress remedy this, if he believed such a bill had any prospect of attracting popular support among either voters or elected officials.

But he will not — for the same reason that he and his predecessors refused to campaign on the idea. They know it is not, in fact, something the American people will support. What Biden is doing instead is asking Congress to suspend the gas tax — in essence, requesting a subsidy to bolster consumption of fossil fuels, because that is what the politics of rising energy prices demands. He is also asking oil companies to invest in expanding production, even as UN secretary-general António Guterres warns: “New funding for fossil fuel exploration and production infrastructure is delusional.” Around the world, including in countries such as Germany that have made green commitments with great fanfare, coal consumption is surging.

In case after case, democratically elected politicians prioritise their constituents’ desire for cheap energy, while unaccountable bureaucrats seek ways to curtail fossil fuel consumption and drive up its price to force a transition to lower-emissions alternatives. Often, the politicians delight in playing both sides, professing solidarity with the voters while gladly declaring their hands tied by byzantine rules, or even binding themselves. Now the Supreme Court has called this bluff.

To the climate activist, philosophising about the separation of powers and the rule of law is wasting time the planet does not have: while democracy is wonderful, desperate times call for desperate measures and a gridlocked Congress is practically begging for circumvention — to quote Justice Robert Jackson, the constitution is not a “suicide pact”.

But every constituency will have its own set of non-negotiable issues, its own definition of an emergency, its own moment when democracy must yield. Only so long as each side agrees to forgo that impulse, and can trust that the others will too, does democracy thrive.