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Huffington Post
4 February 2013
There’s no question that when it comes to fixing national problems, Congress has bigger power tools than the President of the United States. But the President is not powerless. He has a variety of authorities conferred by the Constitution, validated by the courts, implied by tradition or delegated by Congress.
Nor does President Obama lack ideas on how to use those tools, especially on the topic of climate disruption. Since he announced in his Inaugural address that confronting climate change will be one his priorities in the second term, Obama has been bombarded with recommendations from outside groups.
He has tools. He has ideas. The next question is how aggressively he’ll use them. Several factors will be in play: his philosophy of government, competition from other issues on how he spends his political capital, his relationship with Congress or what he wants it to be, whether climate disruption has become a gut issue for him, and whether he has the support of the American people. More about that later.
Many of the President’s tools are well known, and the Obama Administration used a number of them on climate and energy issues during his first term. There’s the veto. There’s each president’s authority to appoint the smartest people in the country to lend their expertise in key government posts. There’s the power of the bully pulpit, used so successfully by past presidents such as Franklin Roosevelt and John Kennedy to rally the nation to big achievements.
There’s the power of the purse. In aggregate, the government is so big a consumer of goods and services that its procurements can build sizeable sustained markets for green products – the kind of markets that spur investment in a clean energy economy.
But deeper in the President’s toolbox are several authorities whose potential applications for climate disruption and clean energy are not as well known:
Presidential Proclamations: Proclamations most often are used to recognize events, but they can also invoke a president’s statutory or constitutional powers and make policy pronouncements that have the force of law. The most famous example is President Lincoln’s Emancipation Proclamation.
The Presidential Climate Action Project has urged President Obama to use this tool along with the bully pulpit to issue a national challenge on energy efficiency. It’s goal would be to make America the most energy-efficient industrial economy in the world by 2035. It would be a stimulus program at every level of society, a moon-shot goal, a pollution prevention strategy, and a domestic nation-building opportunity rolled into one.
As McKinsey & Co. has concluded, “energy efficiency offers a vast low-cost energy resource for the U.S. economy, but only if the nation can craft a comprehensive and innovative approach to unlock it” (emphasis mine). If done at scale and done comprehensively, McKinsey calculated that energy efficiency would yield gross savings of more than $1.2 trillion, cut energy demand 23% and prevent 1.1 gigatons of greenhouse gas emissions each year. In light of these benefits, it’s unconscionable that America now wastes 86% of the energy it consumes.
Presidential Memoranda: These generally are pronouncements that alert executive branch officials to a policy or statutory requirement, or that undo a previous president’s policies. An example is Obama’s 2009 memorandum that directs agencies to protect the integrity of federal climate science.
Presidential directives can be used in many ways. For example, Obama could direct agencies to identify all the ways that taxpayers are subsidizing fossil energy through regulations, programs and administrative decisions. His goal would be to reduce or eliminate subsidies where the Administration has discretion at the same time he uses tax reform to continue pushing Congress to repeal taxpayer subsidies for the oil industry.
Signing Statements: Presidents have used signing statements to effectively nullify laws passed by Congress, to tell executive branch officials how to administer laws, or to influence the legal interpretation of new statutes. In 2011, President Obama used a signing statement to nullify congressional language that would have prevented him from having a senior climate advisor in the White House. This tool will come in handy if Congress passes any more bills to undermine the President’s capacity to deal with climate and energy issues.
Calling Congress into Special Session: The Constitution allows a president to call the House, the Senate or both into special sessions on “extraordinary occasions”. In modern times, this power has been used to deal with issues ranging from unfinished legislation to declarations of war. President Franklin Roosevelt called Congress into session in 1933 to pass his “first 100 days” agenda to deal with the Great Depression.
Today, an “extraordinary occasion” might arise if Congress adjourned without raising the nation’s debt ceiling or without passing a federal budget on time – a practice that hamstrings agencies as they try to do their jobs. Ongoing weather disasters that destabilize the federal budget or the economy could be an “extraordinary occasion” for a special session on climate legislation. The President can’t force Congress to legislate, of course, but a special session is one way to increase political pressure for it to act.
Executive Agreements: The Constitution gives presidents the power to negotiate and enter into binding international agreements. Before a treaty becomes the “supreme law of the land”, two-thirds of the Senate must recommend ratification. At last count, more than 30 treaties were hung up in the Senate on topics as diverse as discrimination against women, nuclear arms control and the protection of oceans. Several were submitted to the Senate more than 50 years ago.
However, there is a way for a president to enter into agreements with other nations without the Senate’s blessing: the “Executive Agreement“. Technically, it is not a treaty but it is a binding commitment between parties. The President could attempt to negotiate an aggressive and enforceable commitment between China and the United States to reduce our carbon emissions, an example that might make it easier to achieve a meaningful international climate treaty.
Convening Power: The White House has the ability to bring smart people together to work on vexing problems and national goals. Obama has used this tool several times on topics ranging from deficit reduction to gun control. He could use it again to create a presidential commission in which governors, mayors, economists, non-government organizations and other key stakeholders frame a national roadmap to the clean energy economy. A clear national energy policy would help liberate enormous amounts of private capital for clean energy, now sidelined by uncertainty about the nation’s energy markets.
Emergency Powers: In an analysis of presidential authority for PCAP, the Center for Energy and Climate Security (CEES) envisioned a time when the combination of increasing climate impacts and inadequate federal response “could lead a future president to consider the possibility of an emergency condition developing, one that could require action by the executive based on ’emergency’ authority.”
This raises interesting questions for White House lawyers: What are President Obama’s emergency powers in regard to energy and climate crises; at what point would ongoing extreme weather events constitute an emergency; and can the President invoke emergency powers to mitigate future crises like those that scientists predict will result from climate disruption?
People Power: The most important source of presidential authority is the American people. In light of the enormous and pervasive risks of climate disruption, the irreversibility of many of its impacts, and his duty to “We, the People”, President Obama has ample justification to use his powers aggressively.
When he does, Conservatives in Congress will accuse him of executive overreach, a power grab, and a violation of the separation of powers. They will try to retaliate with budget cuts and with legislation to repeal powers past Congresses have delegated to the Executive Branch. Carbon industries will find big donors to launch counteroffensives. It is important that President Obama inoculate himself by using the bully pulpit to build strong public support for climate action.
He should not be expected to do it alone. The climate action community outside government should mobilize and help, building on the fact that the majority of the American people believe that confronting climate change should be very high on the list of the President’s and Congress’s priorities.
To paraphrase one former president, we should ask not only what Obama can do for us; we should ask what we can do for Obama.
As President Obama decides how to tackle the growing threat of climate disruption, he might look to precedents set by the two Roosevelts when they occupied the White House during the last century.
Theodore Roosevelt, who served as president from 1901 to 1909, subscribed to the “stewardship theory” of executive power. As legal scholars describe it, he believed he was “a steward of the American people and it was his responsibility to improve their situation.”
Roosevelt explained his obligation this way:
My belief was that it was not only (the president’s) right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or its laws…In other words, I acted for the common well being of all our people whenever and in whatever measure was necessary, unless prevented by a direct constitutional or legislative prohibition.
Twenty years later, President Franklin Delano Roosevelt resolved to attack the Great Depression as though it was the invasion of a foreign enemy. FDR made full use of the authorities delegated by Congress and pushed for more. He sometimes acted first and asked for permission later. Because he enjoyed popular support, Congress often complied. However, Roosevelt also said this in an address to Congress:
In the event that Congress should fail to act, and act adequately, I shall accept the responsibility and I will act.
In taking the oath of office, each president promises to defend the Constitution. Under Article II, Section 3, the Constitution requires the president to “take care that the laws be faithfully executed”. Theodore Roosevelt interpreted this to mean the president should enforce the nation’s laws in general rather than only implementing specific directives from Congress. What are those laws today?
There are at least 112 relevant statutes in which past Congresses have delegated powers to the Executive Branch related to energy or the environment, including 96 that specifically address global warming, climate change or greenhouse gas emissions. The delegations appear in laws dealing with agriculture, commerce, education, foreign relations, public health and transportation, among other topics. Other statutes – for example the Clean Air Act – contain requirements and authorities for the Executive Branch to deal with climate change without mentioning it.
For example:
- Congress has declared that “weather and climate change affect food production, energy use, land use, water resources and other factors vital to national security and human welfare”, that “ongoing pollution and deforestation may be contributing now to an irreversible process (and) necessary actions must be identified and implement in time to protect the climate”.
- Current law requires each president to send Congress a proposed National Energy Policy Plan every two years, outlining energy production, use and conservation objectives in increments of 5 and 10 years. Among other objectives, the purpose of these plans is “the stabilization and eventual reduction in the generation of greenhouse gases”.
- Under the National Environmental Policy Act (NEPA), it is the “continuing responsibility of the Federal Government to use all practicable means…to improve and coordinate Federal plans, functions, programs and resources to the end that the Nation may…fulfill the responsibilities of each generation as trustee of the environment for succeeding generations…”
- Statutes on environmental education state that “there is growing evidence of international environmental problems, such as global warming, ocean pollution and declines in species diversity, and…these problems pose serious threats to human health and the environment on a global scale”.
- The Global Climate Protection Act of 1987 requires each president to develop and propose to Congress “a coordinated national policy on global climate change.”
- The United States remains a signatory to the United Nations Framework Convention on Climate Change (UNFCCC), approved by the Senate and signed by President George H.W. Bush in 1992. The Convention obligates the United States to help stabilize greenhouse gas concentrations in the atmosphere “at a level that would prevent dangerous anthropogenic interference with the climate system” and to bring our human-caused carbon emissions down to 1990 levels. We agreed under the UNFCCC to “protect the climate system for the benefit of present and future generations of humankind.”
These examples only scratch the surface of cases in which Congress has recognized climate disruption and established national policies to deal with it, including delegations of power to the Executive Branch. (For a specific list of statutes, see Attachment A in this document.)
Any reasonable analysis will show that President Obama has made modest use of his authorities so far. He has issued the fewer executive orders than any president since Grover Cleveland.
Now, as FDR concluded about the Great Depression, climate disruption is invading the United States like a foreign enemy. It is inflicting physical damages, loss of life and growing burdens on federal spending and the economy. Yet we are still injecting greenhouse gas emissions into the weather like steroids. It’s a very good time for President Obama to flex his muscles.
William Becker is executive director of the Presidential Climate Action Project. The information, opinions and unattributed quotations in this blog are derived from “The Boundaries of Executive Authority”, a two-volume analysis of presidential powers by the Center for Energy and Environmental Security at the University of Colorado School of Law. See its analysis here and here.
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