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YUMEHIKO HOSHIJIMA Presidential Administration and the Durability of Climate-Consciousness abstract. President Obama took executive actions to address climate change that far ex- ceeded previous Presidents’ efforts to pursue policy objectives through presidential administra- tion. This Note does not focus on the Obama Administration’s major climate change regulations and international agreements, which have already attracted much attention. Rather, this Note identifies a concerted but inconspicuous effort to embed climate-consciousness throughout the executive branch, elevating climate change as a key decisional criterion for federal departments and agencies. This Note explains how the Obama Administration’s efforts exhibited a delicate interplay with the judicial and legislative branches, responding to a judicial demand for rigorous administrative reasoning about climate change while sidestepping congressional hostility to cli- mate change action by finding a narrow zone of congressional inattention. Although convention- al wisdom counsels that subsequent Presidents may easily reverse policies advanced through presidential administration, the Obama Administration’s efforts to advance climate- consciousness may prove surprisingly durable due to formal legal constraints, bureaucratic iner- tia, and public backlash. author. Yale Law School, J.D. expected. The author would like to thank Professor Jerry Mashaw for teaching the Advanced Administrative Law seminar and providing feedback on early drafts; Kyle Edwards, Joshua Macey, and Arjun Ramamurti for workshopping the paper in the seminar; and Patrick Baker and Anthony Sampson for thoughtful editorial feedback and their immense patience. Special thanks to Professor Daniel C. Esty for reviewing drafts and providing insights about sustainability that undergird this paper. All errors, mischaracterizations, and omissions are mine alone. 170 note contents introduction 172 i. 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 Climate-Consciousness 185 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 Aggregation of Presidential Tools 216 ii.ajudicial demand for scientific integrity 217 A. Judicial Treatment of Scientific Assessments on Climate Change 218 B. Caselaw on NEPA and Climate Change 223 C. Caselaw on Cost-Benefit Analysis and Reasonableness 225 iii.limited congressional oversight of climate-consciousness 227 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 243 171 the yale law journal 127:170 2017 introduction In the early years of his Administration, President Obama placed little em- phasis 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 interna- tional 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 weak3 three-page agreement.4 The second failure was the Waxman-Markey bill, which would have estab- lished a national cap-and-trade program for greenhouse gases with stringent 1. Environmental activists and academic observers have argued that during President Obama’s first term, climate change took a back seat to other efforts, including economic recovery. See Marianne Lavelle, 2016: Obama’s Climate Legacy Marked by Triumphs and Lost Opportunities, INSIDE CLIMATE NEWS (Dec. 26, 2016), http://insideclimatenews.org/news/23122016 /obama-climate-change-legacy-trump-policies [http://perma.cc/J2CK-HMFR] (quoting high-profile environmental activists and academic observers). This is, of course, a controvertible view; even during the economic recovery, the Obama Administration brought a pro-climate focus to spending. According to the Office of Management and Budget, the American Reinvestment and Recovery Act of 2009 contained $26.1 billion in climate change-related spending. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO- 11-317, CLIMATE CHANGE: IMPROVEMENTS NEEDED TO CLARIFY NATIONAL PRIORITIES AND BETTER ALIGN THEM WITH FEDERAL FUNDING DECISIONS 8 (2011). 2. Juliet Eilperin, In Copenhagen, U.S. Pushes for Emissions Cuts from China, Developing Nations, WASH. POST (Dec. 10, 2009), http://www.washingtonpost.com/wp-dyn/content/article /2009/12/09/AR2009120904596.html [http://perma.cc/RR5M-2HCQ]; see also Int’l Inst. for Sustainable Dev., Summary of the Copenhagen Climate Change Conference: 7-19 December 2009, 12 EARTH NEGOTIATIONS BULL. 1 (Dec. 22, 2009), http://www.iisd.ca/download/pdf /enb12459e.pdf [http://perma.cc/BUC4-97HC] (providing a summary of the Copenhagen negotiations). 3. John Vidal et al., Low Targets, Goals Dropped: Copenhagen Ends in Failure,GUARDIAN (Dec. 18, 2009), http://www.theguardian.com/environment/2009/dec/18/copenhagen-deal [http://perma.cc/JQG5-4HN5]; Bryan Walsh, In Copenhagen, a Last-Minute Deal that Satis- fies Few, TIME (Dec. 18, 2009), http://content.time.com/time/specials/packages/article /0,28804,1929071_1929070_1948974,00.html [http://perma.cc/WR26-USEB]. 4. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Fifteenth Session, U.N. Doc. FCCC/CP/2009/11/Add.1 (Mar. 30, 2010). 172 presidential administration and climate-consciousness 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 wa- tered down by concessions to heavily emitting industries.8 Although the Wax- man-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 deficien- cies in the risk regulation regime for offshore oil drilling13 and reinforced cli- mate change advocates’ calls to transition away from fossil fuels.14 5. Comparison Chart of Waxman-Markey and Kerry-Lieberman,CTR. FOR CLIMATE & ENERGY SOLUTIONS, http://www.c2es.org/federal/congress/111/comparison-waxman-markey-kerry -lieberman [http://perma.cc/96KQ-5J2Y]. 6. Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. PA. L. REV. 1, 9-11 (2014); see also Daniel C. Esty, Red Lights to Green Lights: From 20th Century Environmental Regulation to 21st Century Sustainability, 47 ENVTL. L. 1, 7-9 (2017) (arguing that this hiatus is indicative of a deeper “political rupture” along partisan and ideological lines). 7. Ryan Lizza, As the World Burns,NEW YORKER (Oct. 11, 2010), http://www.newyorker.com /magazine/2010/10/11/as-the-world-burns [http://perma.cc/H2JJ-PF64]. 8. Darren Samuelsohn, Waxman Predicts Committee Passage as Details Emerge on Cap-and-Trade, Energy Bill, E&E DAILY (May 13, 2009), http://www.eenews.net/eedaily/2009/05/13/full [http://perma.cc/KJU6-AHCS]. 9. Bryan Walsh, Why the Climate Bill Died,TIME (July 26, 2010), http://science.time.com/2010 /07/26/why-the-climate-bill-died [http://perma.cc/5HRX-H53S]. 10. See Randy Rieland, The Blame Obama Game,GRIST (July 27, 2010), http://grist.org/article /2010-07-26-the-blame-obama-game [http://perma.cc/H2DR-R2SQ]. 11. Deepwater Horizon—BP Gulf of Mexico Oil Spill, U.S. ENVTL. PROTECTION AGENCY, http:// www.epa.gov/enforcement/deepwater-horizon-bp-gulf-mexico-oil-spill [http://perma.cc /3XBH-TXYG]. 12. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 21 F. Supp. 3d 657, 757 (E.D. La. 2014). 13. See generally Deep Water: The Gulf Oil Disaster and the Future of Offshore Drilling,NAT’L COMMISSION ON BP DEEPWATER HORIZON OIL SPILL & OFFSHORE DRILLING (Jan. 2011), http://permanent.access.gpo.gov/gpo2978/DEEPWATER_ReporttothePresident_FINAL .pdf [http://perma.cc/5KCK-Y36F] (detailing deficiencies in the risk regulatory regime). 173 the yale law journal 127:170 2017 These three setbacks impelled the Obama Administration to overhaul its climate change efforts. However, after Republicans made sweeping congres- sional gains in the 2010 midterm elections, legislative gridlock forced the Obama Administration
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