US Government Obliged to Take Climate Action, Regardless of Congress
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Related subjects: Carbon Emissions, Climate Change, Diplomacy & Politics, Environment & Ecology, Executive Powers, J.E. Robertson, Judicial Rulings, Legislation, Obama administration, Sustainable Development, U.S. Environment, U.S. Law, U.S. news Comments Off
There has long been a view in Washington that the federal government cannot enact regulations aimed at curbing carbon emissions and other greenhouse gases (GHG) without a specific new statutory framework passed by Congress. In an effort to be conciliatory toward pro-business interests and conservatives in both parties, Pres. Obama has largely held to this view of climate-linked emissions regulations. But this view is actually not supported by existing legislation and judicial precedent.
There is, in fact, a significant body of legal precedent mandating the federal government to act now, within existing law, to curb carbon and GHG emissions, in the interests of environmental sustainability and public health. The US Supreme Court’s 2007 ruling on the potential public health danger of carbon emissions, as linked to global climate destabilization, found that the Environmental Protection Agency (EPA) cannot “avoid” taking action to reduce emissions unless it can prove the entire scientific consensus wrong, as it is required, under the Clean Air Act to prevent emissions from posing a threat to public health.
According to a new report [PDF] from the Climate Law Institute of the Center for Biological Diversity:
The U.S. Supreme Court has repeatedly held that the President has legal authority to bind the country internationally, by way of an “executive agreement,” without submitting a treaty to the Senate for supermajority approval. In fact, Congress already has given the President specific authority to negotiate international agreements to reduce greenhouse gas emissions.
The President also could make an international commitment grounded in his power—and indeed, his duty—to enforce existing U.S. environmental laws. Powerful and effective statutes like the Clean Air Act, Clean Water Act, Endangered Species Act, and National Environmental Policy Act provide ample and readily available tools for addressing America’s contributions to the climate crisis. These laws could be implemented more quickly, and with far greater scientific credibility, than any compromise “cap-and-trade” system that Congress might (or might not) someday enact.
Existing environmental regulatory authority explicitly allows Pres. Obama to oversee a new round of emissions controls, and to pledge such action to the Fifteenth Conference of the Parties to the United Nations Framework Convention on Climate Change at Copenhagen. While this authority already exists under the United States Constitution, which makes all ratified international treaties “the supreme law of the land”, equal in weight to the Constitution itself, Obama’s authority under existing federal law means he can make any pledge to action falling within that legal authority, without having to seek new Congressional legislation or ratification from the Senate.
When the EPA ruled last week that carbon and GHG emissions do in fact pose a verifiable danger to human health, in line with the 2007 Supreme Court ruling, it gave the full legal authority to the president to enact strict new emissions regulations, under the Clean Air Act and other laws linked to industrial emissions, public health and environmental impact. Last week, this publication reported:
The EPA can, due to its authority under the Clean Air Act and in connection with the 2007 Supreme Court ruling classing carbon emissions as a harmful pollutant, establish regulatory guidelines in keeping with the scientific consensus that informed that ruling. This is a 100% legal and viable strategy for the US to institute steep barriers against further expansion of overall national carbon emissions.
The “endangerment” finding also helps to reframe the legal debate on how Congress should approach the problem of dealing with emissions linked to climate destabilization. While ideological opponents question the science showing a link between human activity and climate change, the fact of the legislative role in this process is to make the emissions response more workable, more specific and more geared toward the twin goals of climate stabilization and long-term economic opportunity.
Pres. Obama will likely signal to Congress that he seeks legislative clarification, but that GHG emissions regulations will have to be undertaken under the authority granted the federal government under the Clean Air Act. Cap and trade legislation, or a carbon tax, or mandated emissions cuts, will be a refining of the new emissions regulations, not a replacement for them. In light of this clear legal authority, Pres. Obama’s visit to Copenhagen is likely to provide the conference more hope for global agreement than any previous negotiations.
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