By Barry G. Rabe
For nearly thirty years, every American president from Bill Clinton to Donald Trump has been reliant on administrative powers rather than fresh legislation to pursue their environmental policy goals. This reached new heights during the Barack Obama presidency, and the succeeding Trump administration has largely eviscerated all of the major Obama climate policy efforts via executive orders, regulatory revisions, and administrative stalling, designed to make it as difficult as possible for any successor to shift gears again. Even before Trump’s election, federal courts and aggressive opposition, led by state attorneys general and governors, hobbled some key Obama initiatives such as the Clean Power Plan.
In recent years, I have been studying, with colleagues Frank Thompson and Kenneth Wong, the evolution of presidential power in domestic policy for a new book that will be published by Brookings Press come September. This book will examine the growing penchant for expanding executive authority in multiple areas of federal policy, including climate change, as well as the increasingly prominent role of well-organized states to lead opposition in litigation and implementation, all with a focus on the Obama-to-Trump era.
In the case of climate change, there are ways that administrative powers can and should be used, particularly when policies have a firm constitutional foundation and can build effectively through adaptive mechanisms provided by established legislation. This would include some sections of the Clean Air Act that are tailor-made for such modifications as scientific understanding of risks advances. But there are sobering political and legal limits on what this approach can accomplish. If the United States is to finally move toward a climate policy regime that can prove to be enduring, effective domestically, and consequential globally, Congress must engage constructively.
Any policy route that runs through Congress is daunting but an election is coming and new opportunities may emerge. One consideration is whether there is any future legislative path that involves members of both parties in a hyperpartisan setting where Republicans have routinely blocked climate policy legislation at federal and state levels for the past decade. Current congressional deliberations over separate bills that would phase out hydrofluorocarbons and provide permanent funding for the Land and Water Conservation Fund have continued to move forward with broad bipartisan support in recent months. This is evident even in the Senate, which overwhelmingly approved the latter proposal on June 17. Each could plausibly be approved this year. Neither case would approach the scope of a far-reaching climate bill but both can inform future legislative strategies. They will offer insight into whether any form of legislative bipartisanship is politically feasible on climate change or if instead a purely partisan path is the lone game in town.