The Presidential Climate Action Project (PCAP) has developed a comprehensive plan to address climate change nationally by drawing upon the combined expertise of various groups and individuals from science, policy, legal and other backgrounds. The plan has been developed for implementation at the federal level and is national in scope. It is anticipated that significant components of this plan will be implemented through both the executive and legislative branches at the federal level. As implied by the name of the Project, however, PCAP is giving special focus to those actions that the Chief Executive of the United States, namely the next President, may take with maximum certainty by using the authority of that office. The Center for Energy and Environmental Security (CEES) has been asked to prepare a report on the legal boundaries of executive authority with emphasis on the use of executive orders to implement appropriate provisions of the Climate Action Plan.
The focus of this report is not what has been done in the past by presidential directive, or what might be “possible” to implement by executive order. Rather, the focus is on those actions that can be taken using executive authority, primarily executive orders, with credibility, integrity and within the legal parameters of our constitutional form of government, without regard to the probability that any particular action might go unchallenged. As noted throughout the literature addressing this issue, there are intentionally no hard and fast rules regarding the use of executive authority and when challenges are made the courts are quite deliberate and open that rulings in this area are very contextual. That is, the determination of whether the executive has the authority to take the action being challenged is very dependent on the details of the case and the rulings issued in this area are uniformly narrow in scope. However, this does not mean that there is no guidance at all in this matter, and to the extent that we could, we have attempted to summarize and bring together in one place the most applicable guidance with a focus on the use of executive orders to implement climate action policy. Within this analysis we highlight areas of “maximum certainty,”essentially identifying the strongest starting points from which the President can claim authority.