Presidential Administration and the Durability of Climate-Consciousness

By Hoshijima, Yumehiko | The Yale Law Journal, October 2017 | Go to article overview

Presidential Administration and the Durability of Climate-Consciousness


Hoshijima, Yumehiko, The Yale Law Journal


NOTE CONTENTS

INTRODUCTION                                                       172

1. PRESIDENT OBAMA'S FOURTH PILLAR OF CLIMATE POLICY               177
   A. Background on Presidential Administration                    177
   B. The Need for Climate-Consciousness                           181
   C. Applying Presidential Administration to                      185
      Climate-Consciousness
     1. Directives Issued Through Executive Orders                 187
     2. OMB Budgetary Control                                      191
     3. Environmental Impact Assessments Under
       the National Environmental
       Policy Act                                                  195
    4. Regulatory Oversight for Nonclimate Regulations             198
    5. Authoritative Scientific Resources                          207
    6. Defense Planning                                            212
   D. The Fourth Pillar: A Novel                                   2l6
      Aggregation of Presidential Tools
II. A JUDICIAL DEMAND FOR SCIENTIFIC INTEGRITY                     217
    A. Judicial Treatment of                                       2l8
      Scientific Assessments on Climate Change
    B. Caselaw on NEPA and Climate Change                          223
    C. Caselaw on Cost-Benefit                                     225
       Analysis and Reasonableness
III. LIMITED CONGRESSIONAL OVERSIGHT                               227
     OF CLIMATE-CONSCIOUSNESS
IV.THE DURABILITY OF CLIMATE-CONSCIOUSNESS                         232
   A. Dismantling the Fourth Pillar                                233
   B. Formal Legal Constraints                                     235
   C. Inertia and Backlash                                         239
CONCLUSION: DEMOCRACY AND CLIMATE-CONSCIOUSNESS                    243

INTRODUCTION

In the early years of his Administration, President Obama placed little emphasis on climate change, (1) and his first term was marked by three high-profile environmental policy failures. The first occurred at the 2009 United Nations Copenhagen Climate Change Conference. There, parties to the United Nations Framework Convention on Climate Change, the primary vehicle for international cooperation on climate change, negotiated over the parameters for a new global climate change treaty. The fractious Copenhagen negotiations were marred by public disagreements between major powers, particularly between the United States and the "G-77+China" coalition of developing nations. (2) On the last day of talks, President Obama flew to Copenhagen to participate in last-minute negotiations that salvaged a widely panned and weak (3) three-page agreement. (4)

The second failure was the Waxman-Markey bill, which would have established a national cap-and-trade program for greenhouse gases with stringent emissions reduction targets. (5) Even after a two-decade hiatus in major domestic environmental legislation following the 1990 Clean Air Act Amendments, (6) the Waxman-Markey bill and its Senate counterpart nevertheless attracted strong support from most Democrats and some Republican lawmakers. (7) Yet both the House and Senate versions of the cap-and-trade legislation were gradually watered down by concessions to heavily emitting industries. (8) Although the Waxman-Markey bill passed the House, then-Senate Majority Leader Harry Reid declined to introduce cap-and-trade legislation in the Senate, knowing that he could not reach cloture. (9) After the Waxman-Markey bill died, environmental advocates faulted President Obama for the Administration's disengagement from the legislative effort. (10)

The third failure was the 2010 Deepwater Horizon accident in the Gulf of Mexico, a deadly offshore wellhead blowout that led to the largest marine oil spill in history. (11) Although BP, Halliburton, and Transocean were found liable for the spill, (12) the Deepwater Horizon accident also exposed serious deficiencies in the risk regulation regime for offshore oil drilling (13) and reinforced climate change advocates' calls to transition away from fossil fuels. …

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