Every few days, it seems the U.S. military shoots down another unexplained object drifting over our airspace—and at least one was a Chinese spy balloon. These incidents are also coming on the first anniversary of the war in Ukraine, the most destructive fighting in Europe since World War II. Surely, at this critical juncture, the U.S. Department of Defense and its contractors are focused on keeping Americans safe, right?
Unfortunately, the Biden administration seems bent on forcing defense contractors to comply with new climate pledges instead of protecting Americans from our enemies.
At issue is a new rulemaking called the “FAR Rule” that uses a change to the Federal Acquisition Regulations to bulldoze federal contractors—including defense contractors—into compliance with the Paris climate accords, also known as the Paris Agreement.
Regulations are notoriously boring, but the stakes are high: In fiscal year 2021, the federal government obligated $637 billion through contracts that were subject to Federal Acquisition Regulations.
The FAR Rule should be dropped because it weakens our national security, wasn’t authorized by Congress, skirts required rulemaking procedures, and is so disruptive to the agencies involved that it likely triggers what’s called the Major Questions Doctrine.
The Congressional Research Service explains the doctrine thusly: “The Supreme Court has declared that if an agency seeks to decide an issue of major national significance, its action must be supported by clear congressional authorization.”
First and foremost, the FAR Rule risks turning defense contractors into just another tool of climate activists. The new regulation places the Department of Defense’s basic mission of national security second to climate change. Rather than helping arm America against growing threats from China, the rule requires major contractors to count their level of greenhouse gas emissions like carbon dioxide and develop a plan to comply with the Paris climate accords.
This follows a pattern of politicization of our national defense. Does anyone care how much carbon dioxide was emitted when the F-22 fighter jet engaged a foreign object and shot it down with a Sidewinder missile?
The FAR Rule doesn’t just put America’s defense in second place, it actively takes money away from defense priorities. The proposed rule is estimated to cost $3.9 billion in compliance over a 10-year period. That amount could buy an aircraft carrier or 42 F-35 fighter jets.
Second, the new rulemaking is entirely optional. Congress never passed a greenhouse gas emissions reduction mandate; and the Paris Agreement, although signed by President Barack Obama and reinstated by President Joe Biden, does not carry the weight of an international treaty because it was not ratified by the Senate.
So why implement this regulation? The administration says the rule is meant to comply with Executive Order 14030, issued in 2021, which attempts to establish a goal of “net zero” greenhouse gas emissions, at least for the federal government. However, there’s no law that compels the Department of Defense or any other agency to move forward with these regulations.
Third, if we are to take executive orders seriously, Executive Order 12866, issued in 1993, states that a detailed cost-benefit analysis is needed whenever an agency proposes “significant regulatory action.”
The FAR Rule concedes that it is significant regulation, but it did not go through the necessary procedures required of a significant rule. Specifically, the rule’s benefits are not quantified. This may be because the government cannot plausibly show that the benefits outweigh the costs.
Finally, the rulemaking may fall under the Major Questions Doctrine during judicial review. Major contractors must have their “science-based” targets—defined by the FAR Rule as targets that are in line with the Paris Agreement—validated by the Science Based Targets initiative, a private organization focused on getting companies to comply with emissions reduction targets.
This would grant the organization undue authority over large private corporations to alter business decisions and reorient company priorities toward climate change mitigation instead of defense. The result essentially would be a takeover of corporate planning by a nonprofit group whose interests may not align with those of the American people, the executive branch agencies, or Congress.
To offer a glimpse into the size of the problem at hand, more than half of the Department of Defense’s annual budget of over $800 billion goes to contractors that would be subject to the FAR Rule.
With one rulemaking, the rule could establish new priorities for about half the department’s budget by conscripting major contractors into a war on fossil fuels that was never voted on by Congress or endorsed by the American people.
Just like a Chinese spy balloon, this proposed regulation should never have taken flight. The best that can be done now is to make sure it goes down in flames.
This piece originally appeared in The Daily Signal