PCAP - Presidential Climate Action Project

protection for the marine environment. Such regulations may include theidentification of areas that warrant additional pollution protections and theenhancement of marine water quality standards. The EPA shall consult withthe Federal agencies identified in subsection 4(a) of this order, States,territories, tribes, and the public in the development of such newregulations. 441These executive orders are consistent with our evaluation of the President’s authority over theEPA.Conclusion. There is a basis to support the conclusion that the EPA has the authority toimplement a cap-and-auction system as a performance standard under the current authority of theCAA, although this approach is novel and one that the courts have not yet ruled upon. However,the proposal does not contemplate a voluntary scheme and it proposes an upstream system. TheCAA in its current form does not support these two aspects of the cap-and-auction system.Finally, the proposal as contemplated oversteps the boundary of the President’s authority overthe EPA under these circumstances, and there is no history of directing the EPA by executiveorder to undertake a rule as specific in its character as this. As an alternative the President maydirect the EPA to consider a cap-and-auction system as a performance standard under Section211, leaving the ultimate determination under Section 211 to the Agency. This would be inconjunction with Proposal B-7 directing the EPA to begin regulation of GHGs under the CAA. Ifthe directive is issued in isolation a presidential memorandum should be considered. 442Poor candidate to implement by executive order. Alternative suggested.441 Exec. Order No. 13158, Marine Protected Areas, section 4(f), (May 26, 2000).442 Legally, the type of directive is not at issue. However, as a matter of practice memorandum may be more fittingfor the suggested alternative.CEES 112 | P age