BLANK CHECKS: AN ANALYSIS OF EMERGENCY ACTIONS WARRANTING UNILATERAL EXECUTIVE ACTION.

• Author: Ball, Megan E.

INTRODUCTION

Climate change, like terrorism, demands a response warranted by what it is: an emergency. At least, this is the argument put forth by President Barack Obama during both terms of his presidency characterizing the failure of the American people to reduce and remove the threat of climate change as a "betray[al] [of] our children and future generations." (1) In order to combat "one of [the] greatest challenges of our time," President Obama released the 2013 President's Climate Action Plan ("CAP"), (2) outlining in detail the steps the administration intended to take to curb the impact of environmental changes and to ensure the United States was taking steps to be a global leader in the fight against climate change. In particular, the CAP focused on decreasing the emission of Greenhouse Gases ("GHGs")--specifically carbon, hydrofluorocarbons ("HFCs"), and methane--into the atmosphere, as these GHGs have been identified as a leading cause of rising atmospheric temperatures. (3) The alarming tone of these scientific conclusions have led some politicians to argue strongly for the enforcement--or perhaps just forcing--of compliance with the measures modern scientists believe will remedy, or at least slow, the tide of climate change. (4)

The tone of the CAP, although not nearly as apocalyptic, is urgent and firm regarding the President's obligations to promote technologies and policies for alternative energy sources and reduction of the emission of GHGs. (5) In particular, the CAP insists that hydrofluorocarbons must be reduced and that the Environmental Protection Agency (EPA) must use its authority under the Clean Air Act (CAA) to accomplish this goal. (6) Rather than presenting the work of the EPA as a policy recommendation from the administration, it reads as a directive in stating that the EPA "will use its authority," to prohibit certain uses of HFCs and encourages the use of "climate-friendly chemicals" in their wake. (7)

In an effort to promote and accomplish the policy directive of the administration, the EPA promulgated the "Protection of Stratospheric Ozone: Change of Listing Status for Certain Substitutes Under the Significant New Alternatives Policy Program," known commonly as the "2015 Rule," which regulates the use of HFCs by manufacturers. (8) This action was taken because HFCs are a potent GHG used in the production of many everyday products such as "aerosols, refrigeration, automotive air conditioners, and foams." (9) The particular attention paid to HFCs by the Obama administration was related to the projected increase of nearly doubled usage of HFCs by 2020. (10)

Through the 2015 Rule, the EPA drew upon section 612 of the CAA to assert that the EPA, through its statutorily granted authority to require all manufacturers to replace ozone-depleting substances with safe substitutes, could regulate the use of HFCs by manufacturers beyond their initial replacement of ozone-depleting substances as well. (11) In particular, the argument relied upon the utilization of the Significant New Alternatives Policy (SNAP) Program to accomplish this regulation. (12) Title VI of the CAA, the location of section 612(a), charges the EPA with administration over the requirements for manufacturers to replace ozone-depleting substances with specifically identified "safe substitutes." (13) Additionally, through section 612(c) Congress mandated that the EPA publish a list of "safe substitutes" and those prohibited from use by manufacturers so that manufacturers could readily comply with the demands of section 612(a). Initially after the enactment of Title VI of the CAA, the EPA listed HFC as a safe substitute because the substance is non-ozone depleting and was thus readily used by manufacturers. However, in 2009 after another decade of research, the EPA concluded that although HFCs are not ozone depleting, they are a "potent" GHG with an extremely high Global Warming Potential (GWP). (14) This designation as a GHG means the release of HFCs likely contributes to climate change and "may reasonably be anticipated to endanger public health and welfare." (15) Therefore, through the 2015 Rule the EPA used their authority under section 612(c) to remove HFCs from the safe substitute list. This removal of HFC was uncontestably within the EPA's statutorily granted authority and specifically occurred "in response to the CAP" expectations. (16)

This is where the agreement on the permissibility of this agency action ends. The 2015 Rule went one step further than just removing HFCs from the safe substitute list, but also required all current manufacturers who had already replaced ozone-depleting substances with HFCs to discontinue the use of HFC and to replace the HFC in their manufacturing process again with a secondary replacement chemical from the updated safe substitutes list. (17) When challenged, the EPA relied upon section 612 to argue in support of their actions under the 2015 Rule: that the CAA granted the Agency the authority to suspend the use of HFCs in all circumstances of their present use by industry because the word "replace" does not apply solely to the first generation replacement of ozone-depleting substances, but also to those substitutes instituted in the wake of those ozone-depleting materials as well. (18)

During this public comment period for the 2015 Rule in 2014, the EPA received at least 227 comments on the proposed rule, some of which expressed concern both about the feasibility and legal authority of the Agency to take the actions suggested. (19) One of the public commenters was Mexichem Fluor, Inc., a global leader in the development, manufacture, and supply of fluoroproducts, whose comment raised concern about the inability of section 612 to confer regulatory authority to the EPA beyond the initial replacement of ozone-depleting substances. (20) However, this comment, amongst others, did not stall the passage of the 2015 Rule. As the effects of the 2015 Rule directly injured Mexichem Fluor by preventing the further use of HFC, a fluoroproduct, the company brought suit against the EPA.

This Note discusses the separation of powers issues raised in the D.C. Circuit by then-Judge, now Justice Kavanaugh in Mexichem Fluor's suit. Specifically, this Note analyzes the federal government's approach to climate change, overreach of the EPA to act beyond its statutorily granted authority, and the EPA's reliance upon President Obama's executive directives as the justification for its overreach. Part I of this Note provides a broad introduction of the CAA and the importance of the policy motivations for the later addition of Title VI to the Act. Part II discusses in more depth the decision in Mexichem Fluor v. EPA and why the 2015 Rule prompts separation of powers concerns. In Part III, this Note explores the constitutional framework for the separation of powers amongst the three branches of government during ordinary events. Alternatively, Part IV looks at the constitutional framework for emergency powers by the President in the historical and modern contexts and provides an example of emergency powers delegated to an agency. Part V discusses the ramifications of providing a blank check to an executive agency in an emergency, but ultimately provides three alternative actions an agency could take while maintaining the constitutional separation of powers. Finally, Part VI discusses the current status of the Mexichem decision and its role in Kavanaugh's recent appointment to the United States Supreme Court. This Note concludes that just as the Supreme Court has held in the arena of terrorism, the standard procedures of constitutional governmental action should be followed in response to climate change because our separation of powers doctrines both provide stability and strengthen the nation's ability to respond to crises and emergencies. (21)

1. THE CLEAN AIR ACT

   Throughout the late 1960s it was widely recognized by the American public that the quality of air breathed by the average person in the United States was subpar, largely due to the boom of industrial development and growth in the use of cars during the previous century. (22) For many years, both industrial factories and cars burned fossil fuels and released the byproducts directly into the air. At the time, even if the problem was recognized, there was no federal law that could have been invoked to regulate either the automobile industry or industrial development more broadly. Rather, common-law nuisance or state regulations were relied upon to manage the issue from the legal perspective. (23) However, by the 1960s there was an almost universal consensus that something must be done to address the problem of air pollution. Congress responded by enacting the Clean Air Act in 1970 to create a federal law that would be promulgated through uniform, national standards but implemented through a balance of both state and federal authority. (24) The CAA was considerably revised in the Clean Air Act Amendments of 1990 ("1990 Amendments"), (25) which provided the EPA with a much broader grant of statutory authority to regulate air pollution and set the tone for its modern province. (26)

   Aligned with the overall mission of the EPA: "[T]o protect human health and the environment," the ongoing goals of the CAA are to decrease ambient air pollutants, reduce the release of toxic chemicals that have been linked to human illnesses, and to phase out the creation and use of ozone-depleting chemicals. (27) In order to achieve these objectives, the CAA uses a series of programs and provisions to monitor ambient air quality through various permitting procedures. While the CAA and its amendments raise a variety of legal issues, the question of proper constitutional agency action through the 2015 Rule is confined to the EPA's reliance upon Title VI for its authority.

   Title VI of the CAA was adopted as a part of the 1990 Amendments and directly responded to the...