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Inside the President’s Climate Toolbox, Part 1

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"Inside the President’s Climate Toolbox, Part 1"

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By Bill Becker

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.

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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20 Responses to Inside the President’s Climate Toolbox, Part 1

  1. Mike Roddy says:

    Thanks for laying out these options, Bill, which are not well known to most of us.

    Ultimately it’s going to come down to whether Obama is truly motivated to do what’s needed. The signals here have been mixed for his entire term. If he announces new initiatives, does that mean that he will also halt Arctic drilling, Keystone, and dangerous fracking operations? Will a carbon tax be in play? If the answer to these questions is no, we can expect more mixed messages, leading to no substantial result.

    Effective action would be disruptive, especially to fossil fuel and bank company valuations. Obama will need to make an inner transformation, and decide that the world’s future means more than feeding the accumulation/consumption machine. Let’s hope he’s man enough to do so.

    • Sasparilla says:

      So well said Mike.

      As to the Carbon Tax question – besides the Administration shouting out to the press it was off the table back during the Bush Tax expiration fumble (when it could have been an option), they also officially felt it necessary to say it was off the table in relation to the President’s recent speech (Administration spokesman said this after he gave the speech) – so it appears that bargaining option is not even to be considered by the administration (i.e. not even considering a realistic swipe at climate change action) – however unlikely it would be to get through the house.

      It looks like President Obama will get to put his money where his speech was (differently this time than the last 4 years) and show us how the Veto tool works on the Keystone XL expansion of that tar sands pipeline in the next month or two. That would be a step in the right direction for the 2nd term…

    • Superman1 says:

      The only way he will use these tools to maximum effectiveness is if he’s pressured; in the words of Roosevelt, “make me do it”. There needs to be an outpouring of expression at an extremely high level, perhaps millions convening in Washington and expressing their will in no uncertain terms. If what we get in practice is the 20,000 target of McKibben for the mid-February demonstration, the President won’t even blink.

      • Brooks Bridges says:

        I agree with your initial premise but saying “there needs to be” is pretty lame. What do you propose in its place?

        Are you personally doing all you can to make the number bigger?

        Obama delayed it last year when the max at a demonstration was only 12,000.

        A recent count of signups for Feb 17 is now around 25,000.

        If you go to the site below you will will see people steadily signing up.

        http://act.350.org/signup/presidentsday

        Last year it was just Sierra and 350. This year a lot more enviro and climate groups are on board.

        The next one will be far larger but for our children’s sake we have to start somewhere!

      • AlC says:

        In addition to the Feb. 17 rally in Washington DC, there are supporting rallies scheduled in several other cities. Do an internet search on February 17 Climate Rally and find events scheduled for San Francisco, Los Angeles, San Diego (and more?) for those of us who do not want to increase our carbon footprint by traveling to Washington DC. The one in Los Angeles starts next to Union Station, providing public transit opportunities for those wishing to attend.

      • AlC says:

        Forward on climate Rallies:
        Los Angeles, San Francsco, San Diego, Denver, Chicago, Medford…

        See:

        http://action.sierraclub.org/site/PageServer?pagename=forwardonclimate_solidarityrallies

    • Mulga Mumblebrain says:

      If you look dispassionately at Obama’s life-story, how he was recruited at college, employed then launched and financed onto a political career, how he voted in Congress, how he was financed in his Presidential run, not by zillions of little donation but by the financial wealth extraction apparatus, and, most of all, by his first four years as President, I do not think that there is any chance that he will be different in the next four years. Time will tell. Waiting in anticipation for ‘Godot’, the ‘Good Obama’ to materialise and play the Saviour, is quite tragic. The disappointment this time will be harrowing, but, possibly, cathartic.

      • Sasparilla says:

        “Waiting in anticipation for…the ‘Good Obama’ to materialize and play the Savior, is quite tragic.”

        Very true Mulga, but when he’s our only horse in the race and he’s started to say “he really means it this time” its hard to blame folks for hoping he might come through is at least some small way, however tragic it is. Keystone XL will be the test for him, maybe he’ll surprise us (I’m pessimistic).

        • Mulga Mumblebrain says:

          That’s why the whole scam is so diabolically cynical and sadistic. Following Bush with a choice of Demopublican clones would have enraged the public. So, to pacify them, a plausibly ‘different’ front-man was pushed forward, and, as you could see when McCain began to feign dementia by appointing Palin, the Establishment decided that the Democrats, this Democrat in particular, would be a more soporific product. I really cannot think of many areas where Obama has not disappointed, and where his duplicity was not very soon apparent. I expect even worse this term, and if Keystone does not get the green light, my flabber will be well and truly gasted.

  2. Sasparilla says:

    As to the author’s point (referring to President Obama) “He has tools. He has ideas.”

    Boy, we know he does, and that’s exactly what many of us are quite afraid of…..

    Lets look back at how he used those tools and ideas in the last 4 years from a Climate Change perspective….Keystone 1 tar sands pipeline approval, Alberta Clipper tar sands pipeline approval, large increases coal production on Federal Lands, large increases in offshore oil drilling, okaying drilling in arctic waters because the ice cap is melting away due to climate change, the administration scaling back the EPA’s regulations before release, taking a carbon tax of any kind off the table in recent budget negotiations and in connection to his recent speech…and of course willfully choosing to squander the once in a generation opportunity to push a climate change bill through congress (with Dems in both houses and a veto proof majority in the senate) back in 2009.

  3. Your compendium of presidential powers — at least Part 1 — leaves out the most obvious, and biggest, tool in the presidential toolbox: curbing carbon pollution through standards under laws already on the books – the Clean Air Act, the energy efficiency laws, etc.

    The Natural Resources Defense Council has put forward and innovative plan showing how the President can slow climate change, save lives, create jobs, and grow the economy by using the Clean Air Act to cut the dangerous carbon pollution from the nation’s power plants. It’s posted here: http://www.nrdc.org/air/pollution-standards/

    Our plan achieves huge health and climate benefits at surprisingly low cost, is fair and flexible for each state and power company, holds power bills down, and triggers huge job-creating clean energy investments that can’t be outsourced.
    Our plan reduces overall power sector carbon emissions 26 percent in 2020 and 35 percent in 2025, from 2005 levels. Because of its fair and flexible design features, the NRDC plan achieves enormous climate protection and public health benefits worth $26-60 billion in 2020, at a reasonable cost of $4 billion.

    The president can make even more carbon reductions through clean air standards curbing methane from the oil and gas sector, phasing down potent HFCs, and reducing emissions from measures in other industries.

    All with tools the President already has laying around his home.

    • John McCormick says:

      David, take a moment and reflect on something you know well: a clear sky over the most SOX, NOX and particulates countries on the planet, will push global average temperatures up by almost a degree F. Or, can you clarify how much is the projected temperature increase from a global clear sky policy?

      I have asked a loaded question because I am aware of the damage from fine particulates, SOX and NOX on people and the planet.

      However, the carefully guarded discussion about the unintended consequences of clear skies escapes our review.

      9/11/2001 flights were grounded. Measured temperatures dropped until planes took off a few days later.

      David, we have to understand global dimming a bit better and maybe you can help us?

      Not that anyone is advocating smog and air pollution, it is that this absolute irony stands….China and India invest heavily in baghouses, SCR and scrubbers and the air gets cleaner and the tempeatures rise.

      • Sasparilla says:

        John, just for clarity I think you were meaning to say after 9/11/2001 that measured temperatures jumped (not dropped) across the U.S. without the aircraft contrails blanketing the skies.

    • Bill Becker says:

      David, you’re quite right. Thanks. We in PCAP are advocating that EPA use the Clean Air Act not only to regulate CO2 from existing power plants, but also to phase out the use of HFCs — a refrigerant which is a potent and rapidly growing greenhouse gas. Further, EPA should crack down on methane emissions from natural gas production. Some studies show those emissions threaten to negate any carbon benefits in the switch to gas from coal.

      Beyond the President’s tools, there are many authorities that Congress has delegated to specific agencies and that can be used for CO2 reductions. The Department of Energy establishes appliance efficiency standards and develops a model national energy building code. At Interior, Secretary Salazar issued a secretarial memorandum to create a national water policy and to expand production of renewable energy on federal lands. The list goes on. It’s probably worth another post.

  4. Brian R Smith says:

    Bill, It’s good to know what these presidential options are (I was not aware of two), but in trying to judge their potential impacts from the few examples you give I’m ambivalent.

    Presidential Proclamations: You say they can “invoke a president’s statutory or constitutional powers and make policy pronouncements that have the force of law.” The word on this at The American Presidency Project [http://www.presidency.ucsb.edu/proclamations.php?year=2012&Submit=DISPLAY]
    is that

    “A presidential proclamation is “an instrument that states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized)” (Cooper 2002, 116). In short, presidents “define” situations or conditions on situations that become legal or economic truth.” And: ” The administrative weight of these proclamations is upheld because they are often specifically authorized by congressional statute, making them “delegated unilateral powers.””

    Wikipedia says: “In the United States, the President’s proclamation does not have the force of law, unless authorized by Congress.”

    In the 1863 “Proclamation 95 – Regarding the Status of Slaves in States Engaged in Rebellion Against the United States” aka Emancipation P., Lincoln claimed his authority ” by virtue of the power in me vested as Commander in Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority and Government of the United States…”

    It looks to me that unless the President were acting as Commander & Chief declaring emergency measures as a matter of national security, and even then, his legal authority in proclaiming 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.”… seems shaky at the least. If by proclamation we mean instead a natl. Presidential address on climate meant to enroll the public in the discussion and swing votes, it’s a different frame, more in the People Power category.

    Presidential Memoranda: great for fine tuning within the Administration; not a sharp tool for influencing policy action.

    Executive Agreements: important tool for forging international bargains but a very slow track to a distant or impossible finish line at ratification. Do we have any expectations of Obama pursuing strong bilateral climate deals. China? Certainly not with our oil & tar motivated neighbor to the north any time soon.

    Emergency Powers: as with proclamations, Great tool if you can use it but the legal uncertainties make its usefulness ambiguous.

    Signing Statements: Sign me up, but they are damage control measures, not aggressively helpful in moving the issues.

    So that leaves.. Calling Congress into Special Session, which as an authority would only be brought into play after Obama had established his detailed vision and detailed policy for a low carbon economy, something we haven’t seen and have scant evidence for..

    ..and People Power: “It is important that President Obama inoculate himself [against congressional backlash] by using the bully pulpit to build strong public support for climate action.” Yes the President should do exactly that. But the prerequisite, as with the effectiveness of his other authorities to act, is strong, vocal! backing from the electorate.

    The bottom line is as you say: “He should not be expected to do it alone. The climate action community outside government should mobilize and help..” I’m firmly in the camp that the onus is on that action community to lead the narrative and the political fight for the House. Every body in collaboration, not just @350 and a few others. Public support is fundamental. It will take a lot of goal-planning, coordination of strategy, and commitment to put together the campaign that could, just maybe, galvanize the country. Short of this, I believe Obama will not have the social mandate to lead, and won’t.

    • Bill Becker says:

      Brian — Thanks for this detailed response. In my understanding of Presidential Proclamations, Wikipedia is not correct. And what I’m about to write applies pretty much across the array of presidential tools. A president is on safest legal ground when he follows a specific mandate or delegation by Congress. But presidents can, and often have, used inferred powers, legal precedent and downright “in-your-face-Congress” action. They risk legal challenge and congressional retribution, as I point out, but FDR showed that if a president has sufficient public support, Congress is reluctant to challenge him. That’s why I said at the end of the post that public support is so vital.

      In regard to Executive Agreements, there are three types. The first is negotiated based on a specific act of Congress. The second is submitted to the House and Senate for approval by majority vote of each. The third can be negotiated and implemented by the president without any congressional approval at all. Again, president’ are safest when they take the conservative route, but Obama can use any of these three options if he wishes.

      Our legal analysis concluded that while Executive Agreements are not the “law of the land” as formal treaties are, they are considered binding on the parties.

      • Brian R Smith says:

        Thanks for clarifying things. The circumstances now are far more dire (if less recognized) than those faced by FDR, and I’m willing to think that when public support does become overwhelming the President will use every unilateral power he has to take climate policy actions and force legislators to prioritize it. We can only wait and see how he responds.

  5. fj says:

    Great post.

    Clearly, the president has the power and must get moving on all accounts.

  6. fj says:

    By far, we are upon the largest macro economic and societal transition ever.

    The president must get used to it and perhaps create for himself the necessary functional reality to deal with it; as we all must.

    He must take the bull by the horns before it escapes his grasp.