By Kennedy Maize
Washington, D.C., June 25, 2013 – In many ways, what is not in the plan that President Obama rolled out at his (not open to the public) speech at Georgetown University today is as interesting as what is in it.
Many have noted the absence of references to the pending decision on the Keystone XL crude oil pipeline from Canada to Gulf Coast refineries. A White House spokesperson who requested anonymity for some bogus reason, and who is almost certainly Heather Zichal, the administration spinmeister on climate issues, told reporters (I was not among them and have no obligations to protect her secrecy, even if that results in an Espionage Act charge against me) that Keystone is a separate issue and will be coming months down the pike. Some have speculated that Obama is announcing the climate plan now to cushion the blow to his environmentalist supporters when he approves the pipeline later.
Even more telling is another lacuna in the 21-page text of the presidential plan. If you search the document for the keyword “Congress,” you get “No matches found.” The guts of the plan is an attempt to keep Congress away from having anything to do with the climate policy, because that would certainly kill it and bury it deeper and more difficult to find than the body of Jimmy Hoffa.
But can the White House prevent Congress from sneaking onto the playing field and stealing the ball? It’s a difficult trick for the executive branch to pull off.
Congress has many levers of power over executive actions. Our government functions more like a “balance of powers” than a “separation of powers.”
First, there is the old fashioned – and probably most difficult – way. Congress can pass legislation that would render the Obama plan either illegal or moot. Not very likely, of course, since the current Congress has trouble agreeing of the time of day.
Congress also controls the money the executive branch has to spend to implement its plans. That’s a far more open route to the issue for the solons. Congress has historically sidelined executive branch actions with spending restrictions.
A third way, also improbably but clearly appealing to some, is the 1996 Congressional Review Act, passed as part of the GOP’s mostly feckless “Contract with America.” Also known as the “Small Business Regulatory Enforcement Fairness Act,” this law provides a streamlined path for Congress to overturn executive branch regulations it doesn’t like. It’s been tried a couple of dozen times over the years, but only once successfully, when Congress in 2001 overturned a Clinton administration Labor Department rule on workplace ergonomics.
Why is Congress likely to want to get involved? Coal. Administration denials to the contrary notwithstanding, the new Obama plan amounts to a war on coal. According to the National Mining Association, 25 of the 50 U.S. states produced coal in 2011. The top 10 coal states have 109 members of the House of Representatives (currently controlled by Republicans), or a quarter of the total House. Each coal state also has two senators.
So threading a political needle on climate regulations without triggering a big congressional response is going to be tricky. Will it work? We will see.
On the other hand, as University of Colorado political scientist – and fair-minded observer of climate politics – Roger Pielke Jr. observed on his blog @RogerPielkeJr, “After today’s speech + news/twitter cycle we’ll wake up tomorrow to US climate policy much like it was yesterday.”