This is the last best chance to deal with global warming in the Obama era. The prospect, for environmentalists, is exhilarating but also harrowing. The struggle will be lengthy, waged largely behind closed doors, and its outcome won’t be known until the Obama presidency is nearly over.
In the second week of April, the acting administrator of the EPA told reporters that a state-based plan to regulate existing power plants—that is, something like the Natural Resources Defense Council plan—is “certainly something that will be on the table in this next fiscal year.” That was a gaffe. Officially, the Obama administration has no such plan, and the agency issued a quick official correction, a masterpiece of the passive voice: “To assert that any decision on any additional action has been made would be incorrect.”
The official administration line holds that Congress should pass a cap-and-trade law. In his State of the Union address, Obama prefaced his threat of executive action with a conditional “If Congress won’t act soon to protect future generations, I will.” The if is obviously preordained—no possible scenario, not even if John Boehner were ordered to pass a cap-and-trade bill by a returning Jesus Christ, bearing legislative text, could result in Congress’s passing a cap-and-trade law.
And within the environmental world, it is essentially a given that Obama will enact some version of the NRDC plan. Dan Lashof, its lead author, told me, “We are hearing that they’re looking quite seriously at our proposal.” A “person familiar with the matter” told the Wall Street Journal, “You will ultimately see a proposal from EPA to regulate existing power plants.” A group of electric utilities has already circulated a paper predicting that the EPA will do just that.
New regulations would have to withstand a certain legal challenge from the energy industry—though, crucially, implementation would not have to wait as cases wind their way through the courts. The EPA’s authority has withstood several high-profile challenges before, because the law is so broadly written; on the other hand, the challenges to Obamacare remind us that precedent cannot fully predict the behavior of agitated conservative judges. Also like the Obamacare challenge, the legal fight will play out against the backdrop of political war. Republicans in Congress have proposed barring the EPA from using its powers—in Senator James Inhofe’s formulation, “Put Congress, not unaccountable bureaucrats, in charge of deciding the nation’s energy policy.” The Wall Street Journal editorial page has described Obama’s threat to regulate carbon emissions as something akin to the action of a “dictator.”
So the administration and its allies have been mobilizing for combat. It’s not insignificant that Obama chose Denis McDonough, who has a deep background in climate change, to be his second-term chief of staff, or that he promoted Gina McCarthy, who oversaw the rewriting of EPA regulations in his first term, to run the department. Democratic Senators are vowing to block any House Republican attempt to handcuff the EPA. Working in Obama’s favor is the fact that Americans, while disturbingly blasé about climate change, favor federal regulation of greenhouse gases by huge majorities.
Lashof predicted the following sequence of events. The agency will finish drafting its regulation scheme by the end of the year. It will then take about a year of public comments and revisions, at which point it will finalize its rule. That will be the end of 2014, just after the midterm elections. Another nine months to a year will be required to carry out the rule, which will get us to the end of 2015—and the international climate summit.
The administration’s refusal to publicly commit itself to this strategy, just as it risks losing supporters over the Keystone decision, is in some ways an odd political choice. But it makes sense as a strategy to win the inevitable conflict. The charade of asking Congress to pass new climate legislation demonstrates to the public—and to the courts, inevitably—that the administration is not trying to usurp Congress’s role and will take action on its own only as a final resort.
The timing of a drawn-out regulatory process also dovetails with the progression of Obama’s second-term agenda. The administration needs to cooperate with Republicans to pass immigration reform and harbors at least faint hopes for a budget accord. A muscular exercise of administrative power over environmental policy may reignite the raging anti-government paranoia that made any bipartisan cooperation impossible during Obama’s first term. Far more sensible to pass whatever laws can be passed first.
One also gets the sense, though, that even if Obama shouted his regulatory plans from the rafters, it wouldn’t do much to change the narrative. Outside the narrow energy-and-environment community, few major national reporters or pundits have keyed in to Obama’s strategy. They habitually equate progress with the passage of laws, and the absence of a legislative agenda means the lack of any agenda at all. “Many took note of Mr. Obama’s promise to tackle global warming in his inaugural address,” Edward Luce wrote mournfully in the Financial Times last week. “That was the last anyone heard of it.” The Washington Post’s Chris Cillizza is typical: “[G]iven the fraught politics around doing anything major on the issue … it seems likely that Obama will go small-bore rather than major overhaul if he wants to get something through Congress.” Note the assumption that doing anything major requires getting it through Congress.
Senator Barbara Boxer, the chair of the Environment and Public Works Committee, chided reporters earlier this year: “A lot of you press me … on: ‘Where is the bill on climate change? Where is the bill?’ There doesn’t have to be a bill.” She’s right. We don’t need a law, because Richard Nixon and his Congress, filled with what we today would call environmental wackos, already passed it 40 years ago.
All the myths of the presidency we cling to are perfectly useless here. The heavy lifting will be, by conventional political terms, invisible. There is no need for Johnsonian arm-twisting or Sorkin-esque rhetorical uplift. The fight of Obama’s second presidential term—the much-mocked fight to slow the rise of the oceans and heal the planet—requires only the simple exercise of power.