PCAP - Presidential Climate Action Project

scientific judgment.” 199 Further, by the terms of this decision there appears little room for theEPA to legitimately avoid taking regulatory action based on the latter part of the ruling.However, the next President could re-establish and clarify executive policy on this matter andthus preclude any policy justification for refusal to regulate.Authority over the EPA. The EPA is neither an executive department nor an independentagency. In terms of the President’s authority over agencies generally, the President’s authorityover the EPA would be much the same as his authority over an executive department. 200 In termsof this specific proposal, the President has the authority to direct the EPA to take the necessarysteps to make the endangerment finding immediately, considering: 1) the President’sconstitutional authority as the person vested with the power of the Executive Branch, his duty totake care the laws are faithfully executed, and his duty to preserve, protect and defend theConstitution, including for the purpose of promoting the general welfare; 201 2) the SupremeCourt decision in Massachusetts v. EPA; and 3) the science regarding climate change and GHGemissions. Further, assuming the finding is that GHGs do endanger, the President, based on thesame considerations, can order the EPA to expedite the regulatory process to the extent permittedby law. 202 However, the President cannot make the finding of endangerment in place of the EPAAdministrator. 203The President has substantial authority in planning energy and climate change policy, asestablished in Chapter II. Thus, the President has the authority to issue a policy statement thatwould preclude any policy argument that regulations should be postponed.Executive Orders. There are numerous executive orders that direct agencies to begin work on amatter and to proceed expeditiously. For example, E.O. 13158 directs the EPA to beginrulemaking to address the protection of beaches, coasts, and the marine environment frompollution, and to expeditiously propose new regulations. 204 Further there are numerous executiveorders that demand immediacy. 205199 Id. at 1462-64 (the quote is at1463).200 Boundaries Report, Chapter VI(1)(c).201 U.S. Const., Art. II, §§ 1, 3, and Art. I, forward.202 There are timelines set out for certain activities under the Act. See Boundaries Report, Chapter VIII(1).203 If the President orders the EPA to make a specific determination it is not enforceable and it falls within thecategory of overreaching by the President. The President’s only recourse would be to discharge the Administratorand any future Administrator who did not make the specific finding on endangerment ordered.204 Exec. Order No. 13,158, sec. 2(f), 65 FR 34,909 (May 26, 2000); see also, e.g., Exec. Order Nos.: 13,274(“[A]gencies shall to the maximum extent practicable expedite their reviews for relevant permits or other approvals,and take related actions as necessary . . .”); 13,212 (agencies shall expedite projects that will increase the production,transmission, or conservation of energy, expedite their review of permits or take other actions as necessary); 13,139(expeditiously review waiver requests); 13,101 (expedite the process of designating items that are or can be madewith recovered materials); 12,333 (“[P]rocedures required by this Order shall be established as expeditiously aspossible”); 12,153 (“[T]he Secretary of Energy . . . shall expeditiously conduct a public inquiry as to what othertypes of heavy crude oil, if any, should be exempted from price controls . . .”).205 E.g., Exec. Order Nos.: 13,186 (agencies are “encouraged to immediately begin implementing the conservationmeasures set forth above . . .”); 13,271 (“[T]he Attorney General shall immediately establish within the Departmentof Justice a Corporate Fraud Task Force . . .”); 13,101 (“Agencies are encouraged to immediately test and evaluatethe principles and concepts contained in the EPA’s guidance on the Acquisition of Environmentally PreferableProducts . . .”).CEES 47 | P age