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William S. Becker

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Inside the President's Climate Toolbox

Posted: 02/04/2013 6:49 pm

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 percent and prevent 1.1 gigatons of greenhouse gas emissions each year. In light of these benefits, it's unconscionable that America now wastes 86 percent 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 adviser 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.

William Becker is executive director of the Presidential Climate Action Project. The interpretations of executive authority in this post 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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