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Biden Administration to Require Federal Contractors to Report and Reduce Greenhouse Gas Emissions
A new proposed regulation may test the limits of the Executive Branch's authority to impose regulatory requirements on federal contractors.
Yesterday, the Biden Administration announced that it would be proposing a new regulation to require federal contractors to report on and reduce their greenhouse gase emissions. From the White House Fact Sheet:
In support of President Biden's Executive Orders on Climate-Related Financial Risk and Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability, the Administration is proposing the Federal Supplier Climate Risks and Resilience Rule, which would require major Federal contractors to publicly disclose their greenhouse gas emissions and climate-related financial risks and set science-based emissions reduction targets. . . .
The proposed rule is part of the President's leadership to implement the first comprehensive, government-wide strategy to measure, disclose, manage, and mitigate the systemic risks that climate change poses to American families, businesses, and the economy. . . .
The Federal Acquisition Regulatory Council, composed of the Department of Defense, the General Services Administration, the National Aeronautics and Space Administration, and chaired by the Office of Federal Procurement Policy in the Office of Management and Budget, is issuing this proposed rulemaking, which would amend the Federal Acquisition Regulation (FAR) to implement these changes, if finalized. The FAR is the primary regulation for use by all executive agencies in their acquisition of supplies and services with appropriated funds.
The proposed rule will be published in the Federal Register on Monday. Here's what it does (according to the White House):
Under the proposed rule, the largest suppliers including Federal contractors receiving more than $50 million in annual contracts would be required to publicly disclose Scope 1, Scope 2, and relevant categories of Scope 3 emissions, disclose climate-related financial risks, and set science-based emissions reduction targets. Federal contractors with more than $7.5 million but less than $50 million in annual contracts would be required to report Scope 1 and Scope 2 emissions. All Federal contractors with less than $7.5 million in annual contracts would be exempt from the rule. Small businesses with over $7.5 million in annual contracts would only be required to report Scope 1 and Scope 2 emissions under the proposed rule. . . .
For reference, here are the Environmental Protection Agency guidances on Scope 1 and 2 and Scope 3 emissions.
Like the Biden Administration Executive Order requiring federal contractors to vaccinate their employees, the source of authority for this regulation is the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq. (aka the "Procurement Act"). Specifically, the proposed regulation cites 40 U.S.C. § 121(c) and 51 U.S.C. § 20113.
These statutory provisions provide the federal government with broad authority to standardize federal procurement and to encourage economy and efficiency within the procurement system. But that does not mean this regulation will be easy to defend in court, particularly insofar as it requires contractors to report supply-chain emissions (Scope 3 emissions). Just as courts were skeptical of the Biden Administration's attempt to require federal contractors to vaccinate their employees (as I discussed here and here), they may be skeptical here.
As I noted in my posts on the federal contractor vaccination requirement litigation, it is not entirely clear how broadly the executive branch may impose conditions on contractors that do not relate in some way to the effective and efficient provision of goods and services to the federal government. Part of the problem is that the Supreme Court has never resolved the question.
The prevailing precedent is AFL-CIO v. Kahn, a 1979 en banc opinion from the U.S. Court of Appeals for the D.C. Circuit. In Kahn, a divided D.C. Circuit held:
Although the terms and legislative record of the FPASA are not unambiguous, the relationship of the Act to this case can be outlined. [The Procurement Act] grants the President particularly direct and broad-ranging authority over those larger administrative and management issues that involve the Government as a whole. And that direct presidential authority should be used in order to achieve a flexible management system capable of making sophisticated judgments in pursuit of economy and efficiency.
Subsequent decisions, such as UAW-Labor Employment and Training Corp. v. Chao (D.C. Cir. 2003) have interpreted this language broadly. In Chao, for insance, the D.C. Circuit said this authority could be used to require federal contractors to post notices informing workers of their rights not to join a union or pay union dues. If this was okay, on the theory that it promotes economy and efficiency to require federal contractors to inform their workers of their rights, perhaps it is no problem to impose broad regulatory comments to prevent climate change. But was it okay? Again, we do not have clear Supreme Court precedent on this question.
It has never been clear to me that Kahn and its progeny are correct. (On this score, it is worth considering Judge MacKinnon's Kahn dissent). I also have severe doubts that the current Court would construe the scope of authority under the Procurement Act so broadly. Further, insofar as this regulation is seeking to leverage the federal government's procurement power to address problems that extend well beyond the economy and efficiency of federal procurement—and are part of a broader "all of government" climate strategy—there are good reasons to think federal courts will be skeptical of this initiative.
Recall that in rejecting the OSHA vaccinate-or-test requirement for large firms, the Supreme Court seemed concerned that OSHA was using this rule not to enhance workplace safety, as such. Rather, the rule was part of what we might call an "all of government" effort to increase vaccination rates. And to a majority of the Supreme Court, this was a problem.
This sort of re-purposing of regulatory authority—pouring new wine out of old bottles—was something the Court would not allow in NFIB v. OSHA. By the same token, one has to wonder whether this Court would allos a similar repurposing of the Procurement Act, particularly insofar as the proposed regulation sweeps beyond reducing the carbon footprint of the federal government, but extends to value-chain (Scope 3) emissions of federal contractors. Indeed, this could even be thought of as a "major question," and this rule may be as vulnerable as the SEC's proposed climate disclsoure rule.
I expect these sorts of concerns to be raised during the rulemaking process, so it will be worth watching to see how the federal government responds. One thing is for sure: This rule will be litigated.
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Can you please proofread your posts before submitting them? News of the Biden administration proposing a rule is not so urgent that it can’t be delayed for ten minutes so you can check your work. If you can’t spare the time to read over it after writing it, why should we be expected to read it at all?
You should never, under any circumstances, read Today In Supreme Court History, Kleppe. You might not survive the experience.
Never thought I would see the day, but here it is; Rev. Kirkland and I finally agree on something.
Hmm, from 7-2 in favor of “Terminating” (with extreme prejudice) the less, how do you put it? “Klingers” and ahh, who gives a fuck what you think, the lower classes of all races, to 6-3 against it. Guess there’s one branch of Government not following your bullshit theories (or the House or Senate as of Dec 6)
Frank
Biden is a fucking idiot trying to destroy this country with inflation and energy shortages.
Fortunately for him, idiot single women and Gen Z were more concerned with “free” student loans, taxpayer subsidized abortions, and “marriage” licenses to celebrate men who like to ejaculate into other men’s butts, to show his party the door.
How does this white, male, conservative blog attract so many misogynistic, gay-bashing, racist xenophobes?
Other than by design, I mean.
How did you violate so many Heterosexual Mesomorphs?? I’ve seen photos of you in your prime Jerry, you might have been Intimidating in the Express lane at Wegman’s but you whip out the “Little Reverend” to me and you’d be “Transitioning” without a modern support network…
Frank
I much prefer the term “waving the bloody shirt” which backfired when it was done in the 1870s — instead of continuing to punish the South, the decision was made to end Reconstruction.
Yes, Biden kept the Congress by “waving the bloody shirt” but the economy is rapidly going into the toilet and he probably did the GOP a favor
Look at where we are: The Northeast doesn’t have enough heating oil/Diesel fuel for the winter, Silicone Valley is having massive layoffs, inflation is unabated, crime and the border out of control, etc.
So Dementia Joe is going to do this — what if companies simply decline to bid?
Silicone valley? No no, that’s the other end of CA.
Huh. I thought it referred to the Reverend Jackson. Guess it goes back a lot further than that.
Like Khrushchev and the shoe, Congressman Butler (R-MA) may not have actually waved a shirt, but no one would have ever considered him sympathetic to the South.
As always, you don’t understand the topic. It was Butler’s enemies who made the accusation that he was “waving the bloody shirt.” It was a fake accusation by confederates.
How many gallons of Precious Jet Fuel did Sleepy use flying to Egypt?? Been to Egypt, overrated. And since AlGore invented the Internets, couldn’t Sleepy just use his AOL or Compuserve account and text to whatever BS meeting he’s going to?? Actually don’t really mind his depleting the Strategic Reserves, it’s “Strategic” after all, as in his Strategy for decreasing the margin of the Repubiclown majorities (when did losing both houses become a victory??) Oil does degenerate with time, and it’s not like it’s not continually being replenished deep in the bowels of the Earth (what are you? a Creationist? all Fossil Fuels created on the 5th day??)
Frank
Yet another case of conservatives sticking out their tongue and saying, “You can’t make me eat my vegetables!”
Yet another case of fascism fans forgetting to mention that Resident Joe Biden has kept the trains running on time.
Yes you can pollute if you want to. But why do you want to?
Non sequitur posts are pollution.
If you need to ask that question, you don’t deserve an answer.
Ask Sleepy Joe why he’s flying 10, 666 miles (to get to Cambodia. (Unfortunately) he’s planning on coming back, so 21, 332 miles total, give or take a stop in Gander to check out the Duty Free, I mean honor our Veterans…
747-8 uses about 3, 500 gallons/hr at cruise altitude, assume 500mph ground spead, so hommina hommina hommina,
some 140,000 gallons of Carbon spewed into the Troposphere to fly to a Boondoggle about decreasing Carbon spewed into the Troposphere, Jeez, if it was true, I’d feel warm already…
The president left Washington, D.C. late Thursday evening and delivered remarks on Friday touting U.S. investments in clean energy at the COP27 conference in Sharm el-Sheikh before he landed in Phnom Penh.Taking some down time after two nearly back-to-back flights that lasted between nine and 10 hours each.
Gourmet experience: Air Force One passengers were served “honey chicken biscuits,” a brunch of “spinach & artichoke egg soufflé” and a “harvest chicken salad” with apples, pecans, cranberries and crumbled goat cheese for dinner. For breakfast, the menu was a “blueberry maple chia parfait” and a “bacon, egg & cheese bagel.”
Frank
And I know Trump flew alot also, difference is he’s smart enough to know Global Warmings a bunch of Eric Balls-smell.
Frank
Always smart to take your cue from Trump’s understanding of things.
I just “follow the Science” (man!) Hard to take “Global Warming” oh, I’m sorry “Climate Change” seriously when AlGore, John Kerry, Hillary Rodman, Sleepy don’t.
Frank
Hard to take something seriously when you don’t understand it.
It is, isn’t it?
Very on-brand for you.
The VC-25s (and I believe that BOTH go on overseas trips) are 747-200s and far less fuel efficient than the 747-8.
Didn’t want to confuse the Hoi Polloi, so was just giving the Stats for Sleepy’s ride.
Because the benefit of the polluting act outweighs the pollution.
How exactly?
There will be less pollution.
God, are you stupid!
How much pollution do you have to inhale to think that?
Almost everything people does pollutes in some sense. Whether it’s worthwhile is a question of costs and benefits. This policy is a way for the federal class to expand its empires and for big-government contractors to pad their top and bottom lines. They don’t care if it’s impossible to reduce GHG emissions — the important thing is being able to order people around or vacuum up more taxpayer money, respectively.
The richest people in the world keep making billions from destroying the planet – you’ve got your priorities and your cost/benefit all wrong.
Selling products you happily buy.
We live in a society.
Yeah, so? Like I said, God you are stupid!
Let me know when your carbon footprint approaches zero and you stop buying on Amazon.
No such thing as ethical consumption.
In which Nige makes the case for killing all humans as the only ethical thing to do.
When that’s your position, expect people to call you stupid.
Listen captcrisis,
The question isn’t really about “conservatives”. It’s about gross overreach of power by Biden. If Congress wanted to pass a law, and have Biden sign it, regarding contractors and CO2 emissions, that would likely be legal.
But not doing so, and relying on “dictates” from above is very troubling and problematic.
Man you must have been mad when Trump used his executive authority!
Oh wait, you weren’t. Because it isn’t really about overreach for you, it’s about who is in power and that’s all that determines your outrage.
….and of course because you approve of the unfettered use of executive power, you cheered on Trump?
No, I understand the contours and limits of authority, and judge accordingly.
This is a pretty ordinary use.
Biden’s student loan forgiveness is an overreach, however.
AL doesn’t really care about the actual law and its limits, though. It’s all tribe with him; I don’t believe I’ve seen him criticize a Trump move or defend a Biden one.
Nor you either.
Biden’s loan forgiveness might be overreach, but Republicans are trying to kill it, and oh, look, young people mostly voted Democrat this red wave. Good ol’ Sleepy Joe.
Once again, STUPID!
By the way, you Mom called and said if you don’t get out of the basement she’s going to give your grilled cheese sandwich to the dog.
Your Mom called and said you shouldn’t believe everything strange women tell you over the phone.
Sorry, Sarcastr0 – on this one you’re wrong. There may be other people who let partisanship outweigh principles but Armchair’s comments have been consistent against executive overreach.
And, no, this isn’t an “ordinary use” of federal contracting power.
Were you not here about funding the wall, and telepathic declassification, and firing whistleblowers, and withholding funds to strong arm a foreign leader into announcing his opponent is being investigated and sanctioning sanctuary cities from federal grants?
AL defended it all.
Got any evidence for that accusation Sarcastro?
No? No links? No evidence I “supported it all”? Surprise….
Here you are on the wall:
“Covid crisis. Emergency. Need to prevent population from crossing borders. Need for quarantining. Border control critical. Wall goes up now.”
https://reason.com/volokh/2020/05/17/a-nondelegation-challenge-to-trumps-border-wall/?comments=true#comment-8258453
You’re such a joke Sarcastro.
Defending closing the border in the wake of the COVID crisis? Which literally every country did? Seriously…. That’s all you got?
Here is you defending the strongarming of Zelensky:
https://reason.com/volokh/2019/09/28/evidence-increasingly-indicates-trumps-ukraine-pressure-tactics-usurped-congress-power-of-the-purse-and-that-he-may-have-committed-a-federal-crime-in-the-process/?comments=true#comments
And where in that do I supposedly defend supposed strongarming? Eh? Exact quotes.
There’s a lot of questions. I do pointedly demonstrate BIDEN’S strongarming, which you seem to defend.
“ The Axios story on the Biden demand is incorrect. It’s sourced to an “advisor” who hasn’t been advising the Ukranians for quite a while. And the “advisor” says he didn’t make the claim that it attributed to him.”
You are bucking the facts to defend Trump.
You dint get to call my accusations lies and then turn around and say ‘actually I did say that but it was good tho.’
I mean you do, but not keep your integrity after.
What a dishonest showing from you. And hypocritical as you used dishonesty to try and claim I was lying. Because you didn’t think I’d look it up.
So, let me get this straight….
Original Post: “Person A said Person B did horrible thing”
AL: “Actually, Person A denies saying any such thing”
Sarcatstro: “AL is defending horrible thing! He’s horrible!”
Do you see any problem in your logic? No? Surprise….
Got any evidence for that accusation Sarcastro?
No? No links? Surprise….
Found a couple of links for you – turns out your implication that I was lying was itself a lie – you at minimum are all for Trump using EO’s to build the wall, close the border, and withhold foreign aid to try and sic Ukraine on Biden.
Pretty bad look to lie that you didn’t say what you did in order to make me look bad.
It’s not like it’s hard to search the Internet!
You got me… I recommended closing the border at the height of the COVID crisis. Like just about every other country and individual.
What’s next in your joke list?
You said I was lying about your support for Trump using executive power. Now you are pretending you didn’t say that above.
Weak as fuck dude.
Wow…so many slippery slopes. First I say you’re “implicating” there’s a lie. Which…didn’t actually occur. That I actually said you’re lying…
Which…if anyone reviews the text…didn’t actually occur. As you walk back the many many things you implied occurred….
It’s kind of embarrassing really.
Now, if you said I supported closing the borders in May 2020, at the height of the COVID emergency, I would’ve said…sure.
But you didn’t do that. You “implied” (to use your language) I always support Trump. Once would think you would find some actual evidence from 2018 or 2019….times not during a global pandemic…to support your point. But, no.
That the only piece of evidence you can point to is when the US economy was basically shut down, during an actual emergency…I mean, speaks poorly of your case.
Lots of additional costs to comply in order to achieve nothing
Seriously more government employees and costs to ensure compliance
More private sector employees and costs to ensure compliance
All the while accomplishing nothing.
As usual, your take the Real Science is not material. Nor particularly assured of being correct.
Would you translate that in English?
Joe declares what the result will be as though on high. Which is like hubris but lamer.
Sacastro – Enlighten us on what this will accomplish other than the additional costs
Will it reduce greenhouse emmission Will it reduce the rate of global warming
Seriously enlighten us with your superior scientific knowledge. preferably with real world science.
Yes, requiring contractors to reduce greenhouse emissions will reduce greenhouse emissions.
Not science, just reading.
Sarcastr0 7 mins ago
Flag Comment Mute User
“Yes, requiring contractors to reduce greenhouse emissions will reduce greenhouse emissions.
Not science, just reading.”
Seriously – by how much are those new requirements going to actually reduce greenhouse emissions
Assuming those new requirements will actually reduce greenhouse emission, then by how much will that reduction actually global warming
Keep in mind basic math and engineering – for example the typical EV spews more greenhouse gases than a ICE auto up to the break even point that occurs somewhere between 80k -150k miles when taking into account all the greenhouse gases spewed during the entire manufacturing , mining and fuel , electric generation.
So again – display your superior scientific knowledge on the how and why.
Yeah that’s where I thought you were going – second guessing the science by appeals to your own authority like you always do.
Second guessing what “science”? The “settled science”?
Let us know when an EV is made (batteries included) without using fossil fuels and has a zero carbon footprint.
Sarcastro – Basically you are admitting you lack rudimentary science knowledge to understand why my statement is factually accurate.
Joe_dallas has zero scientific knowledge, so he goes around accusing people of “lacking rudimentary science knowledge.”
David – its not like you have displayed much in the way of scientific knowledge – just for example – you were claiming in the fall of 2021 that the israeli study showing the sharp decline in vaccine effectiveness was not well supported and you continued to insist as such – even though most every study shows the same that the israeli study showed.
Read a little deeper.
Conveniently among the exceptions are state and local governments. Woe that we should burden our “betters”.
Its weird how many exceptions they make from saving the world.
Isn’t it?
Lot of vested powerful interests in destroying it.
The existence of tailoring means it’s careful policy making. Think what kind of contracts the feds would have with state and local governments.
Don’t use the government not acting like a blunt instrument to attack it; that’s dumb.
The requirements will require additional expenditures of energy to comply. Record keeping and reporting don’t happen magically for free. The hope that the regs are a net energy savings is only a hope. If it is more than a hope, where is the evidence?
Concur with your point –
As my original comment was that this provision will accomplish nothing – either in the way of actual (or meaningful) reductions in “greenhouse gases” nor any affect on Global warming.
Contractors don’t care. It’s just another line item to add to the bill.
“Gourmet experience: Air Force One passengers were served “honey chicken biscuits,” a brunch of “spinach & artichoke egg soufflé” and a “harvest chicken salad” with apples, pecans, cranberries and crumbled goat cheese for dinner. For breakfast, the menu was a “blueberry maple chia parfait” and a “bacon, egg & cheese bagel.”
Jeez, talk about spewing Methane into the Troposphere, could you choose a more flatulence producing bill of fare??
They actually had me drooling until the chia bit. The rest of those are good, I’ve had them all.
But a chia parfait? Seriously? Well, I suppose AF1 does carry a lot of people in need of extra dietary fiber…
“These statutory provisions provide the federal government with broad authority to standardize federal procurement and to encourage economy and efficiency within the procurement system.”
The cost of complying with these regulations will reduce the economy and efficiency of the procurement system. Adding costs to your vendors is no way to improve their cost back to you.
Further, insofar as this regulation is seeking to leverage the federal government’s procurement power to address problems that extend well beyond the economy and efficiency of federal procurement—and are part of a broader “all of government” climate strategy—there are good reasons to think federal courts will be skeptical of this initiative.
It would take either a blinkered court, or a climate denier court to accept that reasoning. Given a hypothesis of man-caused climate change, which will create consequences costly for government to address, the relevance of the regulation is indisputable. The good reason to suppose federal courts will be skeptical is that we know who sits on the Supreme Court right-wing majority, and have already seen their ideological commitments in action. No point in pretending anything else would be in play.
Basic science dictates that an atmospheric concentration of somewhere to the tune of ~170PPM of CO2 will end most plant life, therefore oxygen, from the atmosphere which will certainly be difficult to mitigate since, well, everyone will be dead.
Concentrations of atmospheric CO2 as high as 3000+ (estimated by the AGW crowd themselves) is well within the norm of established prehistorical values.
It’s at around ~450PPM.
Pray tell how this is an ’emergency’ to anyone except those who desire the end of industrial society to usher in a communal utopia akin to the middle ages.
— ? —
BYODB –
good point – climate science is in need of a reality check.
While in theory, greenhouse gases are a contributing factor in the current warming phase of the earths atmosphere, (and may partially explain a portion of the current warming), there are far too many other factors and much more powerful factors that contribute to climate that are simply ignored in the global warming analysis.
A prime example of reaching erroneous conclusions is the Bell McDermott study of increase in premature death due increases in ground level ozone. Increase in temp had near 100% correlation to increases in premature mortality whereas increase in ground level only had approx 60% correlation (with some cities a near zero correlation), yet the conclusion was that increase in ground level ozone was the cause. Much of climate science suffers from similar errors.