"Inside the President’s Climate Toolbox, Part 2"
By Bill Becker [Part 1 is here]
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.
- 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.