Presidential Administration and the Durability of Climate-Consciousness.

• Author: Hoshijima, Yumehiko

NOTE CONTENTS

INTRODUCTION 172 1. PRESIDENT OBAMA'S FOURTH PILLAR OF CLIMATE POLICY 177 A. Background on Presidential Administration 177 B. The Need for Climate-Consciousness 181 C. Applying Presidential Administration to 185 Climate-Consciousness 1. Directives Issued Through Executive Orders 187 2. OMB Budgetary Control 191 3. Environmental Impact Assessments Under the National Environmental Policy Act 195 4. Regulatory Oversight for Nonclimate Regulations 198 5. Authoritative Scientific Resources 207 6. Defense Planning 212 D. The Fourth Pillar: A Novel 2l6 Aggregation of Presidential Tools II. A JUDICIAL DEMAND FOR SCIENTIFIC INTEGRITY 217 A. Judicial Treatment of 2l8 Scientific Assessments on Climate Change B. Caselaw on NEPA and Climate Change 223 C. Caselaw on Cost-Benefit 225 Analysis and Reasonableness III. LIMITED CONGRESSIONAL OVERSIGHT 227 OF CLIMATE-CONSCIOUSNESS IV.THE DURABILITY OF CLIMATE-CONSCIOUSNESS 232 A. Dismantling the Fourth Pillar 233 B. Formal Legal Constraints 235 C. Inertia and Backlash 239 CONCLUSION: DEMOCRACY AND CLIMATE-CONSCIOUSNESS 243 INTRODUCTION

In the early years of his Administration, President Obama placed little emphasis on climate change, (1) and his first term was marked by three high-profile environmental policy failures. The first occurred at the 2009 United Nations Copenhagen Climate Change Conference. There, parties to the United Nations Framework Convention on Climate Change, the primary vehicle for international cooperation on climate change, negotiated over the parameters for a new global climate change treaty. The fractious Copenhagen negotiations were marred by public disagreements between major powers, particularly between the United States and the "G-77+China" coalition of developing nations. (2) On the last day of talks, President Obama flew to Copenhagen to participate in last-minute negotiations that salvaged a widely panned and weak (3) three-page agreement. (4)

The second failure was the Waxman-Markey bill, which would have established a national cap-and-trade program for greenhouse gases with stringent emissions reduction targets. (5) Even after a two-decade hiatus in major domestic environmental legislation following the 1990 Clean Air Act Amendments, (6) the Waxman-Markey bill and its Senate counterpart nevertheless attracted strong support from most Democrats and some Republican lawmakers. (7) Yet both the House and Senate versions of the cap-and-trade legislation were gradually watered down by concessions to heavily emitting industries. (8) Although the Waxman-Markey bill passed the House, then-Senate Majority Leader Harry Reid declined to introduce cap-and-trade legislation in the Senate, knowing that he could not reach cloture. (9) After the Waxman-Markey bill died, environmental advocates faulted President Obama for the Administration's disengagement from the legislative effort. (10)

The third failure was the 2010 Deepwater Horizon accident in the Gulf of Mexico, a deadly offshore wellhead blowout that led to the largest marine oil spill in history. (11) Although BP, Halliburton, and Transocean were found liable for the spill, (12) the Deepwater Horizon accident also exposed serious deficiencies in the risk regulation regime for offshore oil drilling (13) and reinforced climate change advocates' calls to transition away from fossil fuels. (14)

These three setbacks impelled the Obama Administration to overhaul its climate change efforts. However, after Republicans made sweeping congressional gains in the 2010 midterm elections, legislative gridlock forced the Obama Administration to respond to climate change with executive actions. (15) Signaling that the Obama Administration prioritized climate change, White House officials recruited John Podesta (16)--a veteran policy and political strategist and then-chairman of the Center for American Progress--to serve as the President's "climate and energy czar." (17) In 2013, the White House unveiled the President's Climate Action Plan, which identified climate change regulations, international agreements, and federal support for state and local responses to climate change as the three "pillars" of executive climate change action. (18) The "first pillar" consisted of regulations to limit greenhouse gas emissions from a wide array of sources. The "centerpiece" of this pillar was the Clean Power Plan, a Clean Air Act regulation that limited greenhouse gas emissions from power plants. (19) In implementing the "second pillar," international agreements, the Obama Administration sought a rapprochement with the Chinese government on climate change. President Hu Jintao's retirement and the Chinese Communist Party's selection of President Xi Jinping as his replacement provided an opening to improve U.S.-Sino relations. The United States and China's cooperation on climate change developed quickly following a June 2013 summit between Presidents Obama and Xi, (20) and subsequent negotiations led to bilateral agreements that facilitated the 2015 Paris Climate Change Agreement by resolving disagreements between the world's two largest and most influential economies. For the "third pillar," the Obama Administration worked with local and state leaders to support their climate change responses by providing resources and technical support. (21)

This Note identifies a less visible fourth pillar of the Obama Administration's strategy: a set of policies that advanced climate-consciousness in the executive branch. "Climate-consciousness" refers to the acceptance of climate change as a key decisional criterion in administrative decision making. The fourth pillar aggressively used President Obama's powers of presidential administration--his authority to direct the federal bureaucracy to advance his policy agenda--to embed climate change as a key decisional criterion in administrative decision making. The Obama Administration exerted this authority with a wide range of tools ranging from well-known methods like regulatory review at the Office of Information and Regulatory Affairs to more obscure methods like budget planning. Through these efforts, the Obama Administration sought to reduce greenhouse gas emissions from the federal government, improve the federal government's resilience to climate-induced disruptions, and equip departments and agencies to grapple with the uncertain consequences of future climate change.

This Note's investigation of the fourth pillar reveals that the Obama Administration championed climate-consciousness with tools that were deeply reliant on sound scientific, technical, and economic information. In other words, the Obama Administration sought to accomplish its objectives in a manner that enhanced bureaucratic rationality. This focus on reasoned administration responded to a judicial demand for scientifically rigorous government responses to climate change, while sidestepping congressional hostility to climate change action by finding a narrow zone of relative congressional inattention.

Additionally, President Obama exercised his powers of presidential administration in a manner that was at odds with conventional expectations about presidential administration. First, the fourth pillar balanced control with cooptation by combining top-down directives and incentives with bottom-up implementation. This belied the common caricature that presidential administration is a coercive and hierarchal use of presidential power. Second, the fourth pillar had a mixed record on transparency. President Obama and senior administration officials appeared to selectively draw attention to the fourth pillar, sometimes choosing to insulate the fourth pillar from scrutiny. This belied the common expectation that presidential administration is transparency-enhancing. Third, Congress was ill-equipped to engage with the fourth pillar, as the fourth pillar often sought to influence the internal functions of departments and agencies. Finally, from the perspective of transitions in presidential power, the fourth pillar may be surprisingly well-positioned to weather the Trump Administration's deregulatory efforts, challenging the conventional narrative that purely executive actions are especially vulnerable to reversal by subsequent Presidents.

Part I of this Note briefly surveys the literature on presidential administration and introduces the concept of climate-consciousness. The Part then describes the fourth pillar and its constituent mechanisms. The Part closes with an analysis of the commonalities, divergences, and complementary relationships among those policies. Part II explains how recent judicial precedents prompted, reinforced, and complemented the Obama Administration's approach to presidential administration. Part III explores how the fourth pillar largely left Congress out of the picture, as the interventions used to promote climate-consciousness were particularly unamenable to congressional opposition. Part IV offers a prospective view, explaining why climate-consciousness in the federal government may remain durable throughout the Administration of President Trump, a climate change denier. (22) The Conclusion briefly looks into the tension between the Obama Administration's efforts--which represent presidential administration at its zenith--and democratic legitimacy.

1. PRESIDENT OBAMA'S FOURTH PILLAR OF CLIMATE POLICY

   The Obama Administration did not use a single, readily identifiable mechanism to ingrain climate-consciousness in the federal bureaucracy. Rather, President Obama's fourth pillar intervened at multiple points, was systematic, and was less visible due to its widely dispersed character. Nevertheless, this advancement of climate-consciousness was no less significant than the Obama Administration's headline-grabbing presidential actions like the Clean Power Plan and the United States' accession to the Paris Climate Change Agreement.

   This Part proceeds in four Sections. Section LA briefly...