Environmentalists are looking at President Obama's latest cabinet nominations as a signal that if Congress does not address climate change he is ready to act on his own. The nomination for administrator of the Environmental Protection Agency, Gina McCarthy, is a specialist on clean-air issues. The nominee for Secretary of the Department of Energy, Ernest Moniz, is a physicist at MIT who is known as an advocate of cleaner energy sources. Moniz is a former Under Secretary of Energy in the Clinton administration. McCarthy currently supervises air and radiation programs at EPA.
Many believe that these nominations show that the president is intent on following through with his pledge to use executive orders and his unilateral authority to reduce climate change if legislation continues to be blocked in Congress. Earlier this week, when introducing his nominees, President Obama said: "They're going to be making sure that we're investing in American energy, that we're doing everything that we can to combat the threat of climate change, that we're going to be creating jobs and economic opportunity in the first place." He already has a committed advocate of action on climate change confirmed---Secretary of State, John Kerry.
Exactly what can be done by executive order is the question. Neither a full carbon cap and trade program nor a carbon tax can be imposed by the President on his own. The EPA could move to further limit the 2.4 billion tons of carbon dioxide emissions from existing coal burning power plants. (A recent proposal from the National Resources Defense Council says that these could be cut by 26 per cent by 2020, with benefits that exceeded the cost of the reduction fifteen fold.) Many thought that this type of regulation would move Congress toward carbon dioxide reduction legislation, but it has not. So EPA may continue down the path of regulating carbon dioxides as a clean air act pollutant. The court challenges to allowing such regulation have already been decided, all the way to the Supreme Court.
Similar measures could be imposed by EPA to reduce methane leaks – which is 72 times more potent in causing global warming than carbon dioxide – from oil and gas wells. Greater efforts in eliminating hydrofluorocarbons in refrigeration and aerosol propellants is another opportunity.
The Department of Energy has the authority to issue standards on energy efficiency. It could issue new standards for appliances and buildings that would increase energy savings, and at the same time reduce carbon dioxide emissions. The Secretary of State could go to work on an international agreement on combating climate change. (This one would, if done by treaty, require the approval of the Senate.) Another option that would be less difficult would be a bilateral carbon dioxides reduction agreement between the US and China, which together account for some 42 per cent of world's carbon dioxide emissions.
Look for these issues to be raised during the McCarthy and Moniz confirmation hearings.© 2013 Varnum LLP