PCAP - Presidential Climate Action Project

President, but the President “may change agency appropriation requests.” 312 This proposal canbe implemented by executive order. Further, this is not an uncommon provision to be includedin an executive order. For example E.O. 13148, orders as follows: “Federal agencies shall placehigh priority on obtaining funding and resources needed for implementation of the Greening theGovernment Executive Orders, including funding to address findings and recommendations fromenvironmental management system audits or facility compliance audits conducted under sections401 and 402 of this order. Federal agencies shall make such requests as required in OMBCircular A-11.” See also, E.O. 13234 (“Each agency’s budget submission to OMB shallspecifically request funding necessary to achieve the goals of this order.”); E.O. 13123 (same asE.O. 13234); E.O. 13149 (OMB shall review budget requests for adequacy of meeting goals ofexecutive order and agencies shall ensure that their strategy for meeting goals are included intheir budget submission).ProcurementChapter IX of the Boundaries Report establishes the basis of executive authority for theseproposals. The analysis will not be repeated here. In this regard the President’s authority isquite broad. The key to this authority is establishing a nexus between the proposed action andeconomy and efficiency in government operations. However, the courts accept fairly attenuatedconnections, thus this is not much of a barrier to these proposals. Generally, based on theanalysis in Chapter IX the President has the authority to implement these actions by executiveorder. Provided here are examples of the use of this authority.8. Goals and incentives for suppliersThe government should exert its purchasing power upstream by creating goals and incentives forits suppliers to improve their energy and emissions profiles, . . . . PCAP Report 8:9.As established in Chapter IX of the Boundaries Report, two relevant areas in which pastpresidents have exerted control under procurement authority are (1) industry control throughquality standards and (2) control over vendors via contractual conditions and obligations. Caselaw applying the Procurement Act supports the President’s use of authority in this manner. Aslong as there is a nexus between the action proposed and an economical and efficient system forthe procurement and supply of property and services the action is acceptable, and the courtsaccept relatively attenuated connections. 313A common incentive is to give priority consideration to certain vendors or products. Forexample, E.O. 12873 provides that the head of each Executive agency shall work to increase andexpand markets for recovered materials through greater Federal Government preference anddemand for such products; agencies shall comply with executive branch policies for theacquisition and use of environmentally preferable products and services. Similarly E.O. 13103orders that agencies shall comply with executive branch policies for the acquisition and use ofenvironmentally preferable products and services and implement cost-effective procurementpreference programs favoring the purchase of these products and services. “Environmentally312 31 U.S.C. § 1108(b).313 See Boundaries Report, Chapter IX(2)(b), (c).CEES 81 | P age