On September 18, during Climate Week NYC, Ali Zaidi, assistant to the President and White House national climate advisor, sat down with students in NYU Law’s Environmental Law Society (ELS) to answer their questions about the Biden Administration’s environmental actions and the role that lawyers can play in addressing climate change.
Environmental Law Society: What do you think the most urgent legal needs are in the climate space right now?
Ali Zaidi: So, one of the things that’s really remarkable to me is the massive expansion in the need for folks suiting up to take on climate with legal backgrounds. The surprising part is the lack of supply to meet the demand.
When I was in private practice, I started this thing called Lawyers for a Sustainable Economy and went around to a bunch of the big firms and said “Hey, in the same way you do pro bono for litigation, we actually need pro bono for corporate work.” There are all these folks who want to create clean energy companies and products and they need legal help.
With the Inflation Reduction Act, we are seeing that be a real pinch point for folks. Things like getting your LLC agreement, figuring out the terms of contracts of service, etc. People need to bring consumer protection into the new products that are being developed. So that’s thing number one. I think we need both people with what you think of traditionally as litigation skills and then folks with what you think of as corporate skills.
The second is that we are focused on every sector of the economy. What that adds in terms of complexity is people who have familiarity with the regulatory concepts for the business practices in those domains. Offtake agreements for clean steel look very different from power purchase agreements for clean electricity, and you’re going to need people who can work through that.
Then there are the new areas of law that I don’t think we even knew we were going to need. The changing climate and its impact on coastlines, for example, are raising new areas of property law issues. When we’re trying to create this whole climate-smart agriculture market, how do we work to make sure there’s inclusion? There’s this whole area of work around using this clean energy moment to lift up communities that have been left behind.
Then there’s the more traditional DC Circuit law, where people are working through APA and regulatory law, that is as relevant today as it’s been. Environmental law is in many ways—I know this sounds US-centric—a US innovation, [with] the Clean Air Act, the Clean Water Act really being these foundational statutes that have been very organic and interactive and developed through case law in a way that’s been really innovative relative to the rest of the world.
ELS: One of the asks of [the Climate Week] protests is that President Biden declare a climate emergency. What is your perspective from a legal background and from working in the White House on what that means? How is the Biden Administration thinking about what a Climate Emergency Declaration would offer, and why that hasn’t happened yet?
Zaidi: On the emergency question, what tools do you have available under the Emergency Authorities? There’s been a lot of scholarship in this space. We are constantly in engagement with legal scholars and with the advocacy community. One of the things [folks called for] was to look at our authority under the trade laws of the country, Section 232 [of the Trade Expansion Act] in particular, and embed climate considerations. The President has done that. He went to the [European Union] and pushed for inclusion of climate considerations into the Steel and Aluminum Trade Arrangement to resolve the 232 dispute. That’s one really clear and fleshed-out concept that’s relatively novel, but we have advanced that. That was based on our assessment of administrability, impact, and then legal durability.
A second place where we were rightfully pushed was the use of the Defense Production Act (DPA). Under the DPA, the President has, a number of times, exercised his authority. [Here are a] couple specific examples. On the adaptation resilience side, we were fighting those horrific wildfires over the summer [in 2021] and we ran out of hoses to hose down the wildfire—the last factory in America that manufactured them had shut down. So we used the DPA to stand that factory back up and get the hoses out to people to deal with the fire.
On solar, he used a combination of his powers on trade and tariff to provide a short-term bridge for imported panels and at the same time issued a Defense Production Act declaration that made solar eligible for DPA. Same thing on heat pumps, where we saw a huge opportunity when the world dealt with the aftershocks of Russia’s invasion to declare that as an asset that was very important.
There are places unfortunately where we’ve taken significant executive actions and not been successful in court, and we are trying to learn those lessons. On Day One in his Executive Order, the President ordered the leasing pause. During that first year or so, that pause meant that there were no sales during that period as the Department of the Interior did its review. Then the Louisiana District Court, and subsequently the Fifth Circuit, took very extraordinary steps to pause the pause. But they didn’t just pause the pause, they then directed lease sales, which took away discretion from the Interior Secretary.
We are a rule of law administration, we followed the law, but one of the things I have to think about is “Are we going to do something that takes the discretion away from us that yields a worse-off result?” The fear of losing should not prevent you from taking your shot, but when the planet and communities on the front lines hang in the balance, you have to think about what are the odds-weighted likelihoods of certain outcomes.
ELS: We know that you played a huge role in the Biden Administration’s Justice40 Initiative to ensure that 40 percent of the overall benefit from certain federal investments go into environmental justice communities. As young lawyers, what can we do to make sure that promise is recognized now, and in the future?
Zaidi: Thing number one is to find places in state and local governments where you can push the envelope further. Thing number one is help build more proof points on the ground.
Thing number two is that these conversations are not devoid of things that have been raging on for decades in the civil rights discourse. It may be that in the work of climate justice, you’re a civil rights lawyer focused on how you deal with these issues. Thing number two is that you don’t have to have a climate application to be contributing to the cause.
[Thing number three] is that we are seeing massive recoil on [diversity, equity, inclusion and accessibility] (DEIA) initiatives in the private sector. That’s a political thing that requires legal engagement because sometimes people make their judgments based on where they think the law is going.
The last thing I’ll say is that the greatest thing about this country is that it’s a democratic system which means change comes from the bottom up. I don’t think we can underweight the power of a group of litigators and others getting together with a community that is on the fence line, working through a solution that is actually grounded in law that’s available, to try to structure something that improves people’s lives. In the work of climate justice, we will have the moments where we throw the ball down the field forty yards, but at the same time we have to be fighting the rushing game, and that’s the stuff that’s on the ground.
This interview has been condensed and edited. Posted on October 4, 2023