PCAP - Presidential Climate Action Project

The DOT is already a partner in this initiative. To give the DOT a more prominent role, thePresident should give the DOT more authority within the effort or move the effort from the EPAto the DOT. Either could be done by executive directive as the program is a presidential initiativeand not statutory. It was moved by agreement of the DOE and the transportation sector partnersfrom the DOE to the EPA.It is a public-private partnership and would serve an advisory purpose thus the Federal AdvisoryCommittee Act (FACA) would apply. FACA does not restrict the President’s authority toestablish committees; it includes administrative and procedural requirements related to, forexample, notice and public access. See Proposal F.Authority over the Agencies. The DOT is an executive department, as are two of the otheragency partners, the DOE and the USDA. 250 In regard to executive departments, it is presumedthat the President is constrained only by the requirement that he “not direct any act beyond thebounds of an administrator’s legal authority.” 251 The EPA is neither an executive department noran independent agency. In terms of the President’s authority over agencies, generally, thePresident’s authority over the EPA would be much the same as an executive department. 252 Interms of this specific proposal, directing agency participation in task forces or working groupsthat will provide advice or information to the President is well within the President’s authority, 253notwithstanding the fact that that the agencies already participate in this effort.Executive Orders. Executive orders are commonly used to establish initiatives, task forces,working groups, etc. For example, E.O. 13134, Developing and Promoting Biobased Productsand Bioenergy, establishes an interagency council and an Advisory Committee on BiobasedProducts and Bioenergy.Conclusion. This proposal is, in essence, directing the establishment of a working group, or taskforce comprised of federal agencies and private entities. There are no barriers to taking thisaction by executive order although the provisions of FACA would probably apply. These arelargely administrative and procedural provisions related to, for example, notice and publicaccess.Good candidate to implement by executive order.250 5 U.S.C. § 101.251 Shane, supra at 609; see also, Boundaries Report, Chapter VI (It is said that executive agency heads serve “at thepleasure of the President” and, therefore, are under greater pressure to conform to the President’s policy goals.Endnote omitted.).252 Boundaries Report, Chapter VI(1)(c).253 This falls within “procedural” supervisory authority over administrative officers. See Boundaries Report, ChapterVI(4).CEES 62 | P age