EPA Acts Unilaterally on Climate Change

Frustrated that it couldn't achieve desired environmental legislation despite huge majorities in both Houses of Congress, the Obama administration has decided to govern by executive fiat.

Frustrated that it  couldn’t achieve desired environmental legislation despite huge majorities in both Houses of Congress, the Obama administration has decided to govern by executive fiat.

The Obama administration took separate actions this week to protect clean air and federal wilderness areas, reaffirming that the White House can pursue its goals without depending on help from an increasingly combative Congress.

In the coming two years, that may become a more popular approach.

In a statement posted on its website late Thursday, the Environmental Protection Agency announced it is moving unilaterally to clamp down on power plant and oil refinery greenhouse emissions, announcing plans for developing new standards over the next year.

EPA administrator Lisa Jackson said the aim was to better cope with pollution contributing to climate change.  “We are following through on our commitment to proceed in a measured and careful way to reduce GHG pollution that threatens the health and welfare of Americans,” Jackson said in a statement. She said emissions from power plants and oil refineries constitute about 40 percent of the greenhouse gas pollution in this country.

President Barack Obama had said two days after the midterm elections that he was disappointed Congress hadn’t acted on legislation achieving the same end, signaling that other options were under consideration.

Jackson’s announcement came on the same day that the administration showed a go-it-alone approach on federal wilderness protection — another major environmental issue. Interior Secretary Ken Salazar said his agency was repealing the Bush era’s policy limiting wilderness protection, which was adopted under former Interior Secretary Gale Norton.

On climate change, legislation in Congress putting a limit on heat-trapping greenhouse gases and allowing companies to buy and sell pollution permits under that ceiling — a system known as “cap and trade” — stalled in the Senate earlier this year after narrowly clearing the House. Republicans assailed it as “cap and tax,” arguing that it would raise energy prices. But the Senate in late June rejected by a 53-47 vote a challenge brought by Alaska Republican Lisa Murkowski that would have denied the EPA the authority to move ahead with the rules.

Jackson noted in Thursday’s statement by her agency that several state and local governments and environmental groups had sued EPA over the agency’s failure to update or publish new standards for fossil fuel plants and petroleum refineries. The announcement Thursday came in connection with a settlement of the suit the states brought against the EPA.

The EPA also announced Thursday that it was taking the unprecedented step of directly issuing air permits to industries in Texas, citing the state’s unwillingness to comply with greenhouse gas regulations going into effect Jan. 2. EPA officials said they reluctantly were taking over Clean Air Act Permits for greenhouse gas emissions because “officials in Texas have made clear  they have no intention of implementing this portion of the federal air permitting program.”

Two days after the midterm elections, Obama served notice that he would look for ways to control global warming pollution other than Congress placing a ceiling on it.  “Cap-and-trade was just one way of skinning the cat; it was not the only way,” he said. “I’m going to be looking for other means to address this problem.”

Presidents have, since the days of George Washington and Thomas Jefferson, made unilateral decisions arguably outside the scope of their Constitutional power and dared Congress or the Courts to stop them.   The  practice has  increased over time and been made easier by Congress having delegated much of its power to Executive agencies.   The consequence is an administrative state where the elected representatives of the people have a mostly reactive role, acting to check these agencies, rather than making affirmative decisions on national policy.

FILED UNDER: Climate Change, Environment, US Politics, , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Jack says:

    I have a question, prompted by the last paragraph implying that the actions by the EPA are outside the scope of the Constitutional powers of the Executive branch. The question is this:

    Why are rules regarding climate change excessive, when arguably climate change is a potentially huge threat, when rules issued by the Department of Homeland Security which on the face of them violate the Fourth Amendment are accepted almost unquestioned (at least by those of a right-leaning bent), especially when the effectiveness of these rules are far more questionable than those regarding climate change?

    I’m not trying to hijack the thread, I just honestly don’t see why some are OK with selected violations of Constitutional powers and get all red-faced over others.

  2. James Joyner says:


    It goes both ways, I guess, with people not concerned about EPA using extraordinary powers going ballistic when TSA or CIA does. As for myself, I’ve been anti-TSA from Day 1.

    I do tend to be more forgiving, though, of presidential aggressiveness on actual Defense and Intelligence activities, since Congressional action is mitigated by need for speed.

  3. Drew says:

    Interestingly, it was recently reported that there has in fact been no statistically significant increase in global temperature over the past 15 years, 2010 included. Not surprisingly, this got no play in the mainstream press.

    But I’m sure AGW advocates will tell us “that’s predicted by the AGW theory.” Just like hurricanes, warm spells, cold spells, tornadoes, droughts, the NY Yankees winning World Series……… You name the event, its predicted by AGW theory.

    Pretty handy theory, eh!

  4. Bob B says:

    Besides the fact that I think the whole issue of dangerous global warming caused by human contribution of 3% of a trace Gas CO2 is a hoax, I would think there would be some MEASURABLE outcome by actions from the EPA. Will they be able to show any change in the Earth’s temperature at all?? I think not.

  5. Joe Schmoe says:

    It’s unfortunate that the President is doing this without giving congress the proper time to craft legislation to combat climate change. I mean we’ve only known that climate change is a serious threat for…oooh that’s right, I forgot. We’ve known its a problem for decades and congress has decided to punt about 10 different times.

  6. kramer says:

    I hope the new congress defunds the EPA to a fraction of what they are getting today.

  7. freetoken says:

    It is not “executive fiat” nor “outside the scope of their Constitutional power” nor a “unilateral” act for a federal agency to execute the law, whose interpretation on the subject has already been rendered by the USSC:

    Just because you don’t like something doesn’t make it unconstitutional or somehow dark and sneaky.

  8. Zelsdorf Ragshaft III says:

    Wonder how they will answer when they stand before congress to defend this? Democrats only listened to one side because it was and is a power grab. And their friends stand to make fortunes selling us things we do not need like high cost energy. The GOP House will defund these power grabbers and end this fraud. I hope those who perpetrated this fraud are prosecuted and the money spent on faux science recouped.

  9. john personna says:

    GW is real, but never underestimate the ability of people to dis-believe something that (they think) interferes with their happiness.

    The sad thing is that happy, efficient, lives are entirely possible. It is just a societal hurdle.

    On that, cap and trade is emblematic. It is a poor solution for carbon, but it has enough “free lunch” promised that it is tried again and again. I don’t know if you saw the latest Danish news, but some claim they are out two percent of GDP.

    If we were smarter (1) we’d do a carbon tax, and (2) the carbon tax wouldn’t really bite because we’d switch our consumption.

    Of course, that all depends on a society which is ready to respond. That isn’t true here, and it certainly isn’t true in China.

  10. john personna says:

    BTW, deniers above should really sit and think through their opposition to NASA

    I mean, face it, you are birthers with a slightly different tune.

  11. Zelsdorf Ragshaft III says:

    John P. When you bite into a lie, you really sink your teeth in, don’t you? 10 years ago AGW “scientists” from CRU said snow would be a rare thing in the UK due to global warming. Based upon that prediction the government did not spend money on foul weather equipment. Turns out it is actually colder than warmer as weather all over the planet indicate. Your fidelity to manipulated science displays a gulibility I wish to take advantage of. John, I have some property off the shore of Florida I would like to sell. There are bound to be lost treasures there. Make me an offer.

  12. john personna says:

    I will actually waste a few minutes giving you a serious answer, Zels.

    The first thing you have to remember, when talking about global climate, is that it is a global summation of heat content. The sum must be taken over all the volume of air, water, and land, which takes its heat from the sun. (That ceases to be true at high altitude where you meet space, or deep in the earth, where internal fires burn.)

    So to know if the global temperature is rising you really need to do a snapshot and to a weighted average with the temperature of the “air stack” above you, and the dirt or water below you. That’s hard. Definitely. But if you have it, you can try to see if it is changing, and this is the important part, in total.

    So, it is sad that people talk about snow in the UK, because it shows that they’ve never really been taught (or accepted) how that works in to the big picture. Any particular locality is just that. It goes into the total, but you actually have to run the math.

    NASA does this. They are big guns.

    When I say that I am making an “appeal to authority,” but yeah.. Actually, they are.

  13. Trueofvoice says:

    Drew, could you provide a link to the peer-reviewed study which concludes temperatures have not increased in 15 years? I’ll wait.

  14. tom p says:

    A little reading about actual science… if you are up to it:



    The first talks about the incontrovertible fact of the increase of CO2 in our atmosphere and the inevitable result of that build up. The second article points out the rather obvious fact that warm air contains more moisture than cold air… ergo, more snow means warmer air (combined with colder air which if you actually read the article you WILL understand.)

    ZRIII: You are excused from this exercise as actual scientific fact means nothing to you.

  15. john personna says:

    I’ll do something truly awful here. I’ll tip Zels to a stronger position. Just say this:

    Global Warming may be true, but I just don’t care.

    It’s stronger because respects the science, and uncertainty, with the “may.”

    It’s also stronger because it really represents the global human consensus.

  16. lgm says:

    Contrary to your article, I believe the Supreme court already has ruled that the EPA has authority to regulate greenhouse gasses.


  17. Axel Edgren says:

    Is the rejection of the fact that ecology=economy an American disgrace and another example of utter republican surrender to emotion and anti-left bigotry? Yes.

    Would many Bangladeshis and other climate-vulnerable people really benefit from this? Sure

    Might this approach be the only foreseeable way to actually make US entities behave in a matter that is long-term compatible with legitimate public interests and prevent a tragedy of the commons? Perhaps.

    Is the media going to repeat and legitimize the inevitable ‘eco-fascist’ smear campaign by the GOP/Teepers? Of course they will.

    I have no problem about the idea of Obama recognizing the priority of scientific fact and environmental sensitivity over populist whining, lightbulb-huggers and oil-addicts, but he better be ready for a marketing push lest we get another ‘death panel’-style meme on our hands.

  18. musa says:

    The Clean Air Act clearly specifies carbon-dioxide emissions as under its purview. There is no constitutional issue here. Congress has already granted the EPA the authority to regulate GHGs, its just until now that the executive has chosen to enforce this proviso of the CAA. This constitutional hand wringing is over nothing.

  19. Axel Edgren says:

    “Besides the fact that I think the whole issue of dangerous global warming caused by human contribution of 3% of a trace Gas CO2 is a hoax”

    Yeah. You have probably never actually read anything about how marginal increases in CO2 affects the atmosphere.

    This is a “common sense” approach to issues that I find incredibly hilarious.

    “CO2 can’t be bad because plants need it!”
    “It must be the sun because it is very warm!”
    “How can a LITTLE addition of CO2 have a strong effect?! That doesn’t make any sense!”
    “Greenland was green once!”

    This shows an incredible amount of bad faith. Without even once checking to see if complaints or questions have already been answered (or superficial inconsistencies are just that – superficial) you just throw out any possible misgivings, as if the scientists have utterly failed to consider before what you are considering now. This is because you are already dedicated to the marketing effort of discrediting climate science.

    I’m not going to try to wake someone up when he is only pretending to sleep.

  20. Jim Jensen says:

    I object to the characterization of the Obama EPA’s action on greenhouse gases as “unilateral.” On the contrary, they are acting under Supreme Court order.

    Congress passed the Clean Air Act, and the Supreme Court agreed with plaintiffs in 2007 when they ruled that the EPA had a responsibility under the Clean Air Act to determine if GHGs were harmful to humans or the environment and if so to regulate them.

    The Obama administration has been and is now simply fulfilling its obligation as the executive branch of government to enforce and administer existing law. What is happening now has always been the default position since the court ruling. Congress knew this even as they failed to use the opportunity they were given in the 111th Congress to choose a different, more market-based, approach.

    Obama and the EPA are doing their jobs properly, even if Congress is abdicating their role to form a better policy, one I might add, that was originally conceived and implemented as a Republican solution to acid rain. [Seriously, google “Republican solution to acid rain.”]

  21. worn says:

    In response to Drew’s statement: “Interestingly, it was recently reported that…” I would like to inquire where and by whom? That’s where the rubber meets the road.

  22. Barry says:

    Oh, I can answer that – there was a spike in temperatures in 1998, caused by the strongest El Nino observed in a very long time (I live in S. Michigan; we had no snow stick to the ground in the entire month of February that year).

    This caused a spike in the trend of increasing temperatures (El Nino’s cause recurring spikes, but this was huge), and therefore the temperatures were lower for a few years.

    Now, anybody who looked at the graphs would realize what had happened, but denialists were being deliberately deceptive.