The Executive Power-Grab in the Climate Bill

by Chris Horner on November 12, 2009

in Blog

At risk of getting into a peeing match which my time budget may not allow me to finish, I believe that the dispute between Ed Morrissey over at Hot Air and the folks at the Washington Examiner joining Sen. David Vitter (and, by implication, I suppose me) is not necessary but worth resolving. Caution: it is also for the legislatively inclined or otherwise the pointy-headed. But, since I arguably joined the fray on Big Government on Tuesday, here goes.

At issue is a provision buried in both the Waxman-Markey and Kerry-Boxer “global warming” bills.

I had to leave for a few hours after starting my comment on this, in which time I decided not to wage the war over how strongly we need to argue that it prima facie nullifies the rest of the respective legislative language that too many lobbyists tout was carefully crafted to provide “certainty”. Lobbyists of course tend to say things reflecting well on their defense of client interests.

What is inescapable is that this language dispels such notions of certainty. But that shouldn’t be shocking. The bills statutorily establish “global warming” causation, for every existing or new increment of GHGs (read: employers, economic activity), as well as harm caused. And they fail to preempt states and elsewhere EPA as needed, or the National Environmental Policy Act, Clean Water Act or Endangered Species Act, or every other tool that’s already being tried out as a “global warming” law. Let alone the rest of the U.S. Code. All of which is relevant to context, as we shall see.

My point, truncated, is that this provision at issue clears out any legal clutter possibly standing in the way of ongoing attempts to treat the ESA, CWA, NEPA, and in fact all other laws on the books as carbon dioxide suppression/avoidance laws. These laws, particularly ESA, are sweeping in their power even to shut down, but particularly to block anything new. That is in many ways a game-changer for the greens, is why it is being fought, and saves years in the courts fighting over whether such authority actually exists. Now, if you choose, read on.

The issue is whether this language poses a serious, substantive threat or not, with what I view as the controlling language emphasized:


(a) AGENCY ACTIONS.-The President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706, and to address any shortfalls identified in such reports, not later than July 1, 2015, and every 4 years thereafter.

(b) PLAN.-In the event that the Administrator or the National Academy of Sciences has concluded, in the most recent report submitted under section 705 or 706 respectively, that the United States will not achieve the necessary domestic greenhouse gas emissions reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall, not later than July 1, 2015, and every 4 years thereafter, submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

So, when viewing the meaning of this provision at issue in the appropriate context in order to view its most likely meaning, we also should note two things. First, no one says that this bill if perfectly implemented would control global concentrations of greenhouse gases – which is the trigger for deciding that “more” is needed, a trigger set where it will be exceeded ab initio – or that it would have a detectable climate impact. Which is to say, going in, we know that the answer by EPA and the National Academy of Sciences (kidding, right?) will be, also ab initio, “more”. Second, bear in mind that this language at issue was important enough to be identically inserted in bills otherwise so different that they range from about 800 pages to 1,300 pages in two different houses of Congress.

Ed styles what he sees as the Examiner’s/Vitter’s questionable reading of this as follows: “If true, it would undermine the entire notion of a cap-and-trade system – and give the President dictatorial powers over energy production and manufacturing.” (emphasis in original)

This is already sufficiently detailed that I do not think the best approach is to address the conflict as whether there are “emergency powers” for the president in the provision – that was rhetorical license, I believe, as there is no such category created here, if that’s the issue for anyone and, if it is, it’s the wrong issue. Although, in practice, a command to exercise any extension of all statutory authority found in the U.S. Code (including this bill), whatever the law or program may be, in the name of attaining some carbon dioxide objective beyond U.S. regulatory control is far too similar to such a description for me to decide that such word choice is the issue.

Instead, the issue appears to be whether this provision opens a floodgate of executive activism, and/or litigation seeking to compel a reluctant executive, such that the idea that the “cap-and-trade” is anything but a floor as opposed to the ceiling and patently phony “certainty” it is sold and, sadly, accepted by many as.

That is, the issue is the objective, first half of Ed’s framing of things, disregarding for the moment the latter characterization of the language’s possible use.

I think the answer to that is obvious. Yes.

Whether the latter characterization, as allowing (let’s say “plenary”) power over all manner of economic activity requiring federal permits, is found in this language depends upon whether the greens would sue to ensure the letter of the 707(a) authority is followed, and prevail. Now we are speculating. But I speculate yes they would, and their record and that of the courts is that they would prevail more often than not.

Remember. The 1990 Clean Air Act Amendments brought “certainty”. Then EPA started to get clever, and the greens litigious, with the New Source Review provisions. Certainty, lost. I suggest that no one familiar with that progression quickly dismisses the above language as a new, substantial threat.

Then we turn to the world before Massachusetts v. EPA “global warming” case which suddenly divined that, well, golly, EPA can regulate carbon dioxide as a pollutant. Compare that to the world after that opinion, which reminds and affirms that – even though the notion of covering CO2 as a “pollutant” under the CAA was debated in 1990, and rejected – once the greens and the courts get together, with a little assist from an activist administration and EPA, we know how things turn out. Far less ambiguity has been tortured by the courts, including now the Supremes (you gotta read Scalia’s Mass. V. EPA dissent), into confessing to things that previously were dismissed far more rakishly than Ed dismisses the concerns expressed by the Washington Examiner and Sen. Vitter.

This also reminds us that the authority for an agency to do something is not the same as a requirement that it do something. That is relevant to what I see as a red herring, the idea that this “shall” language does not create any new powers, be they “emergency” or otherwise. Tru, dat. Yet at the same time it also removes any potential question whether any provision in any law which an activist administration now claims is or can be used as a GHG suppression measure is now authorized to be one. Between that and creating new authority is, I suggest, a distinction without a difference.

Remember. The day this law goes into effect, atmospheric concentrations will already be beyond what the law says is acceptable. And nothing that we do could lower them. But pretty well everything we might possibly try is now authorized. EPA doesn’t even need any new authority to change the acceptable atmospheric concentration from 450 parts per million from to 350. It’s on. All laws on the books are now interpreted, consistent with legislative intent, as tools to reduce or avoid GHG emissions in the name of lowering a global concentration.

This is why I suggest context is so important to understanding the meaning of this language.

I won’t even get into possible separation of powers or delegation issues raised here (if the National Academy of Sciences says jump and how high the federal government of the United States must act? Really?). As such, my conclusion is as follows:

The first paragraph at issue tells the executive branch to use all existing laws (and all authorities in this bill) to do whatever it thinks necessary to try and lower atmospheric GHG concentrations below where they are the day the law goes into effect; this of course goes far and beyond “cap-and-trade” quotas and timetables. The second paragraph says you can also ask Congress to spell it out if you think you are lacking authority despite “(a)”. But “(b)” is a complement to, not a condition precedent for, aggressive action under “(a)”.

This language approves the idea of implementing all federal statutes as GHG suppression measures. How huge that is is impossible to overstate. There is nothing on the books today supporting that proposition. So far, even in the absence of such a sweeping declaration, we rarely see the courts declare grants of authority as insufficient for all manner of mischief under the discretion granted EPA and other agencies called “Chevron deference”. That doctrine means that we have a fairly substantial burden of proving she was arbitrary and capricious in her interpretation of authority granted her by Congress.

EPA is already trying to implement the Clean Air Act to allow it to create a carbon dioxide cap-and-trade scheme in the context of a different cap-and-trade program the Agency had concocted despite recent admonition by a federal court that the Agency cannot just make up that very authority as it sees fit. It is also proceeding with what it calls a GHG “tailoring rule” to read the number 250 in the Clean Air Act as 25,000, even though the statute is clear that 250 means 250. And so on, as those of you who’ve toiled in the increasingly troubling field of EPA regulation know all too well.

Adopting such authority as that at issue here is not smart. The provision is not an accident. Remember. No one says this bill will have a climatic impact if the carefully designed caps and timetable are followed. If this legislation is indeed about the climate to its promoters, then this provision is intended just as it reads.

This language is a license to steal. It is a serious threat. Arguing whether it creates new authority argues a distinction without a difference. It effectively makes the cap and timetable mere sideshows, but inescapably ensures that seeking the refuge of “certainty” in this bill, as more and more CEOs have told me their lobbyists promise them is available here, is a fool’s errand.

In context, the reason for ensuring this precise language appeared identically in both “cap-and-trade” bills is clear. This is to be defeated, not dismissed. Guarding against alarmism on our side is proper. We should guard against dismissing broad grants or set-ups for interpretations of authority just as vigilantly.

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