During her presidential campaign announcement, Senator Amy Klobuchar declared that on her first day in office she would take the U.S. back into the Paris Climate Agreement.
Over the course of the primary other Democratic candidates echoed this sentiment. One of the reasons they did this, besides that it is popular with Democratic primary voters, is that it is something a president can do without needing Congressional approval.
They can also perform what are known as executive orders.
With the Stroke of a Pen
In 2013, President Barack Obama signed the Climate Action Plan, which focused on initiatives to increase natural disaster preparedness, create and improve existing hospitals, and encourage other nations to reduce deforestation and decrease fossil fuel subsidies. This is an example of a president acting through an executive order.
Executive Orders are produced by the president, as the head of the Executive Branch, and are directed to, and govern actions by, government officials and agencies. They have the force of law, even though they are not passed by Congress. Since 1980, there have been over 1500 Executive Orders signed by Presidents on a variety of issues and policy areas.
Over the next four years, this could be a tool that the president uses to take actions on climate policy. The one caveat is that their successor can always reverse the orders as President Donald Trump did with the Obama Administration’s climate policy related order.
The golden rules and regulations
As head of the Executive Branch the president is responsible for the execution and enforcement of the laws created by Congress. To implement the law, on a given matter, regulations are issued by the various departments and agencies in the government. The Clean Power Plan (“CPP”) gives us an example of some of the ways the White House can impact the creation of regulations.
In 2009, after Supreme Court rulings granted the EPA authority to regulate greenhouse gas emissions under the Clean Air Act, the agency was tasked with coming up with and implementing regulations to achieve these goals, resulting in the CPP.
The CPP’s goal was to cut emissions from power plants by 32 percent below 2005 levels. The regulations required power plants in some cases to undertake expensive upgrades or shut down.
The CPP was based upon authority granted to EPA under the Clean Air Act to regulate the power sector. But there are other provisions of the Clean Air Act that could be invoked to provide economy-wide regulation of GHGs, including the National Ambient Air Quality Standards (NAAQS) program. Many commentators have noted that this could be used to regulate emissions nationwide, and some groups have gone so far as to petition the EPA to use its authority to implement a “GHG NAAQS.”
Friends in high places
As we saw with Clean Power Plan, the power to appoint people can shape how the government acts. This power is further highlighted by the fact that as the head of the Executive Branch, the president makes over 4000 appointments to positions in the federal government. This includes the heads of agencies, departments, and commissions that have a clear role in setting policy, writing and issuing regulations, and enforcing statutes. In terms of climate policy, some of the key appointees will be in the EPA, Department of Energy (DOE), the Department of the Interior (DOI), the Securities Exchange Commission (SEC), and Federal Energy Regulatory Commission (FERC).
Here are just a few examples of how appointees can and have impacted climate policy:
- They can direct where their agency chooses to focus its resources and set its priorities are in the coming years. For example, current EPA Administrator Andrew Wheeler has said that the agency will shift its focus away from climate change and toward issues like cleaning up Superfund sites.
- How funding is directed within an agency can be impacted by the appointees. For fiscal year 2019, even as coal plants around the nation close because they are uncompetitive, the DOE put funds towards research and development of new coal facilities.
- Actions that take place on federal lands, like mining and drilling, must follow the regulations set out by the U.S. Bureau of Land Management (BLM). In 2017, the BLM ended the ban on new coal leasing on federal land that had been in place.
- Those chosen to sit on regulatory boards or commissions can exercise great authority. Over the past few years, FERC Commissioners have issued regulations that critics charge favour the coal power plants and punish the renewable energy sector. In addition, the commission has approved new natural gas pipelines.
In recent years new SEC appointees have been more likely to rule in favour of energy companies who argue shareholder resolutions and proposals on issues like climate change are micromanaging. It is likely that a different set of appointees might have taken a different set of actions regarding these regulatory and funding issues.
One important difference between those appointed to commissions and those who are appointed to departments is their tenure. Department heads and other appointees can be removed by the president and usually leave when a new administration takes over. In contrast, commission members serve fixed terms and, except in a few bodies, cannot be removed by the president. This gives commission members the power to impact policy even after an administration is out of office. For certain commissions, including FERC and the SEC, the president’s party can appoint up to three of the five members of the commission, and the President designates the commission’s chair.
Outside of agency and commission appointees, the president also chooses the delegations that go to international conferences like COP. Their presence and activities send a strong signal about America’s willingness to address the issue going forward and how we hope to shape what comes out of the event. For example, during his tenure president Trump has used this opportunity to send a delegation that advocates for the use of coal and natural gas.
Here Comes the Judge
In recent years there has been an increase in climate policy related cases. We have seen states and localities suing companies for responsibility on climate change, people suing the U.S. government for not taking enough action to deal with climate change and states challenging actions by the federal government. Some of the main issues in these cases include who, if anyone, can be held responsible for carbon emissions, who should pay for problems caused by climate change, and what constitutes legal standing in climate related cases.
Although the Judiciary is an independent branch of the U.S. government it is an area that the President can shape through appointments. Since 1980, U.S. Presidents have, on average, appointed 182 federal judges out of 809 positions. During this same period, they have been able to nominate two judges on average for the Supreme Court. Given the courts’ current split, and the recent abolition of the filibuster for appointing judges the next four years could greatly reshape U.S. legal precedent for regulating and addressing climate change.
While it is impossible to predict exactly who a president will appoint, and how they will rule once they are on the bench, it seems that one might infer that an administration in favour of climate action will more likely nominate people who share their view on the role and scope of the law when it comes addressing this issue. Conversely, an administration hostile to climate action will likely look for appointees who take a view of the law that steers the court toward a narrow reading and application of the law on issues like climate policy.
Given its powers and authority, if America is to implement economy-wide limits on carbon emissions or other broad measures to deal with climate change the U.S. Congress will have to pass legislation. Over the years Congress has proved to be a place where climate change legislation, despite bipartisan backing and public support, has failed. Efforts in 2008 and 2010 to pass cap and trade legislation made it through the U.S. House of Representatives only to fail in the Senate because of barriers like the filibuster.
Whether the next Congress will take up climate change in 2021, and in what way, will not be settled until after this year’s election. In the meantime, we do know that if the president is serious about this issue there are things that they can do that will have an impact on policy for years to come. The question is, will the president be willing to do them?