Based on the limits of the executive branch’s power it is possible to hypothesize what climate change and energy actions the next administration might take no matter which presidential candidate wins, experts said Wednesday during a panel discussion at the Center for Strategic and International Studies.
As with any modern U.S. election, there are two plausible end scenarios: the Democrat, Hillary Clinton, or the Republican, Donald Trump, will win. Taking into consideration the 2016 party platforms and what the candidate themselves have indicated, that means the next president will either be for or against climate action. The panelists choose not to name names in their analysis, but at this point in the election, safe assumptions can be made.
If the next president is opposed to climate action, as is Trump, he will try to weaken as much as possible the legacy left by the Barack Obama administration on that issue, Kyle Danish, a partner at the law firm of Van Ness Feldman and a senior associate in the Energy and National Security Program at CSIS, said during the event.
Such a president would be opposed to regulating greenhouse gases. Still, “We think there would be a rather high hurdle to avoiding any greenhouse gas regulation under such an administration,” Danish said, noting that the Supreme Court in 2007 ruled that greenhouse gases are pollutants and thus fall under the purview of the Clean Air Act.
The Environmental Protection Agency has determined that carbon emissions endanger public health or welfare, which further obligates the EPA to regulate. “The only way that seems to me to avoid regulation at all of greenhouse gases under the Clean Air Act would be to make a new scientific determination that greenhouse gases do not endanger public health and welfare, which seems like a fairly high hurdle,” Danish said.
More likely, an anti-regulation administration would try to reduce the impact of environmental rules already in place, Danish said: “The president could direct EPA not to enforce the rules if they are upheld. [He could], for example, not require state plans like the Clean Power Plan rule” on carbon emissions from coal-fired power plants.
The new administration could also draft new rules to replace those established by previous presidents. “In effect this would likely involve new rulemakings to change these rules. The burden on the agency here, or the executive branch, would be to provide a reasoned decision sufficient to sort of overcome the prior technical and legal judgments that would likely be thrown at them by the people who have supported those rules, and clearly there would be some litigation on that,” Danish said.
Of course, the other likely scenario would be that the next president desires to expand climate change actions. The path for such a president, Clinton, would also have its hurdles, this time in Congress. “Implementing new climate policies without new authorities from Congress means accepting some significant constraints, talking about maybe a large number of rulemakings at both the federal and state level with all the burdens on the executive branch and the regulated entities that that would entail,” Danish said, adding that “the executive branch would face some constraints in designing policies that are market based,” such as a carbon pricing in the form of a tax or cap-and-trade program.
Such a market-based program could be possible with congressional support. The panelists differed on the chances of a favorable Congress. “It could be that if we have Democrats controlling the White House and the Senate and the election goes badly for the Republicans, they’re going to look for a win. They’re going to need to show the American people they can govern, they can be productive, they’ve got good, workable ideas. So perhaps Speaker [of the House Paul] Ryan (R-Wis.) and his team would develop a tax reform package that allows for a carbon excise tax,” said Adele Morris, policy director for climate and energy economics with the Brookings Institution.
Bob Perciasepe, president of the Center for Climate and Energy Solutions (C2ES), was not as optimistic, calling it a “fantasy” that Congress would pass a carbon tax and avoid litigation. “However I think it is extremely important that we try to find the path forward to that end, regardless of the litigation,” he said.