PCAP - Presidential Climate Action Project

policy). Performance standards must be based on objective criteria; thus, any principle uponwhich they are based must be clearly defined.The first part of this analysis identifies supporting authority for the declaration. Although thedeclaration is aspirational, grounding it in authority lends credibility and legitimacy to thedirective. Further, it bears on the second part of this proposal as the declaration will also be usedas the basis for an order to federal agencies to establish duties and performance standards ofprogram managers.3.1. Declaring that the Atmosphere is a Global Commons that should be ProtectedBackground. There is no statute that establishes this principle explicitly. However, it is notuncommon for executive orders to be issued “in furtherance of” or “to reaffirm and strengthen” apolicy, principle or duty, and a policy or duty contained in a statute carries the most weight. 317Executive orders are also sometimes issued “consistent with” statutory authority. 318 There is acogent, supportable argument that the policy contemplated by this proposal does not contradictthe will of Congress and is, in fact, in furtherance of Congress’ will as has been expressed innumerous statutes over time. A review of some of these statutes follows below.Statutes. The following is a review of selected statutes that support the principle contemplatedby this directive. This evaluation is organized into three sections: (1) statutory provisions thatestablish a purpose, mission, goal, finding or declaration of national policy directly supportingthis proposal (e.g., it is traditionally or explicitly inclusive of air pollution or climate change); (2)statutory provisions with the purpose, mission, goal, finding or declaration of national policy thatprimarily regard something other than the air or the atmosphere; however, protection of theatmosphere would be an inherent part of the strategy necessary to address the mission or goal ofthe law; and (3) statutory provisions that this declaration is “consistent with.” There arenumerous statutes that could be included in each of these categories; we highlight here some ofthe most significant as examples of supportive authority.317 See, e.g. Exec. Order No. 11987, Exotic Organisms, (May 24, 1977) (“. . . in furtherance of the purposes andpolicies of the Lacey Act . . . and the National Environmental Policy Act of 1969, . . .it is hereby ordered as follows. . . .”); Exec. Order No. 13157, Increasing Opportunities for Women-Owned Small Businesses, (May 23, 2000) (Inorder to reaffirm and strengthen the statutory policy contained in the Small Business Act, it shall be the policy of theexecutive branch to take the steps necessary to …”).318 E.g., Exec. Order No. 12114, Environmental Effects Abroad of Major Federal Actions, (Jan. 4, 1979) (“in orderto further environmental objectives consistent with the foreign policy and national security policy of the UnitedStates, it is ordered as follows . . . .”).CEES 84 | P age