The Administrative Presidency and the Environment

Policy Leadership and Retrenchment from Clinton to Trump

David M. Shafie

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429947384
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política medioambiental y energética

The growth of the administrative state and legislative gridlock has placed the White House at the center of environmental policymaking. Every recent president has continued the trend of relying upon administrative tools and unilateral actions to either advance or roll back environmental protection policies. From natural resources to climate change and pollution control, presidents have more been willing to test the limits of their authority, and the role of Congress has been one of reacting to presidential initiatives.

In The Administrative Presidency and the Environment: Policy Leadership and Retrenchment from Clinton to Trump, David M. Shafie draws upon staff communications, speeches and other primary sources. Key features include detailed case studies in public land management, water quality, toxics, and climate policy, with particular attention to the role of science in decisionmaking. Finally, he identifies the techniques from previous administrations that made Trump's administrative presidency possible.

Shafie's combination of qualitative analysis and topical case studies offers advanced undergraduate students and researchers alike important insights for understanding the interactions between environmental groups and the executive branch as well as implications for future policymaking.

1

Environmental Policy Gridlock

In his 2018 State of the Union Address, Donald Trump kicked off the second year of his presidency by boasting, “We have ended the war on American energy, and we have ended the war on beautiful, clean coal.”¹ His first year was a lucrative one for the coal industry, thanks to a number of regulatory rollbacks requested by a coal baron and political supporter. After donating $300,000 to Trump’s inaugural fund, Robert Murray followed up with a memo entitled “Action Plan for the Administration of Donald J. Trump,” which detailed 16 specific actions to benefit the industry. These concessions ranged from rescinding regulations on strip mining to withdrawing from the 2015 Paris Climate Accord.

None of Murray’s directives included requests for new legislation, and this was by design. Many of the rules he objected to were mandated by federal laws, such as the Clean Air Act and Surface Mining Conservation and Reclamation Act, which remained popular. Congress was reluctant to update and amend these venerable statutes, despite flaws that occasionally undermined their implementation. In this climate of political conflict created by unclear and outdated federal statutes, the executive branch is in a stronger position to lead on environmental issues by influencing policy outcomes at the implementation stage. Thus, the coal baron’s wish list consisted of policy changes that were possible to achieve without going to Congress: administrative rule changes, unilateral actions, budget cuts, specific political appointments, and the nomination of conservative judges to the federal bench. Even though Trump, a Republican, was elected with Republican majorities in both houses of Congress, the administrative strategy offered certain advantages. Bypassing Congress, he could pursue his policy goals without the scrutiny that comes with the legislative process. Without the deliberation that entails, he could also expect faster results; by 2018, the administration had acted on all 14 of his agenda items.

The Republican 115th Congress played a supporting role in these regulatory rollbacks, approving one resolution after another under the Congressional Review Act (CRA). However, this was only a minor role in advancing Trump’s agenda, which was concerned with reversing his predecessor’s initiatives on pollution, energy and climate, in ways that would benefit the fossil fuel industries. Trump’s go-it-alone approach was also a departure from the presidents who preceded him. For example, Barack Obama tried working with Congress to enact ambitious climate legislation early in his presidency, but that effort was soon abandoned in favor of an executive-centered policy agenda.

The turning point for Obama came after the Democrats’ loss of their majority in the House of Representatives in 2010. The Center for American Progress, a think tank led by former Clinton Chief of Staff John Podesta, released a report and a series of recommendations that the president use administrative tools to enact a progressive agenda before the next election, rather than waste his energy pursuing legislation in a gridlocked Congress.² Rulemaking, executive orders, and agency management led the list of policy instruments that Podesta singled out: “The U.S. Constitution and the laws of our nation grant the president significant authority to make and implement policy.” The CAP report identified several urgent issue areas, as well as administrative actions that could be implemented by the end of 2012. Some of the 34 recommendations involved using executive authority under recent statutes to overcome compromises made in Congress. For example, Obama could ensure the new consumer financial protection agency could wield strong and independent regulatory authority. He was urged to administratively withdraw federal lands for preservation, and promote preventative health care by actively guiding rules to implement the Affordable Care Act. Other more modest goals might be accomplished in additional varied policy areas, particularly in education, simply by advocating rules that would make college financial aid more transparent. In addition, the president was urged to stop jailing noncriminal immigrants, to create a virtual U.S. statistical agency, and to order that solar panels be placed on the roofs of Air Force hangars.³

Even in Obama’s first few months in office, when many environmentalists were elated to see a president hold the first-ever “green” inauguration and publicly support their causes, the political landscape barely resembled the more verdant environmental era of the 1970s. During that fruitful decade, activists pressured Congress to pass a series of sweeping environmental laws, and the environmental movement enjoyed its greatest policy successes and more favorable public opinion. The new landscape offered bleak prospects for Obama to persuade Congress to enact such significant environmental legislation. His administration pursued ENR priorities without Congress as much as possible, relying upon directives and administrative rulemaking to reverse Bush-era policies on pollution, endangered species, and strip mining. This allowed Obama to save political capital to bargain with lawmakers for higher priorities, mainly the economy and health care reform. With the lone exception of a toxic chemical reform bill delivered late in his second term, Obama’s environmental policy accomplishments were the result of administrative actions.

There is also a significant downside to an administrative strategy. Policy change by administrative action, compared to an act of Congress, can be fleeting. Just as the Obama Administration was able to rescind many Bush Administration initiatives on energy and the environment, Obama’s own environmental rules, executive agreements, and national monument declarations were vulnerable to repeal by Trump and the 115th Congress after the 2016 election. At best, these types of policy changes are partial and provisional.

The Pendulum Swing of the Environmental Presidency

Every recent president has acted in some way to expand the capacity of the office to influence environmental policy. Covering two decades of presidential involvement in environmental policy, this study explores the advances and retreats of the most recent administrations and analyzes the role of the presidency as it develops and becomes more active in shaping policy outcomes outside of the legislative process. The White House has been at the center of environmental policy ever since Richard Nixon established the Environmental Protection Agency, in an executive reorganization. The time of this agency consolidation and reorganization could also be characterized as an era of Congressional activism, when several major environmental statutes were passed, sometimes over veto threats of presidents. The environmental decade, which ended abruptly with the election of 1980, was followed by a decade of conflict that nevertheless managed to produce major environmental policies through the legislative process. Paradoxically, the Reagan assault on the regulatory state reinvigorated the environmental movement in opposition to that administration’s policies, as the movement maintained pressure upon Congress to reauthorize and strengthen major environmental laws passed in the 1970s. This tense but productive decade culminated in the Clean Air Act Amendments of 1990, which established an innovative cap-and-trade program to control acid rain. Passed by a healthy bipartisan majority, the act was also the last major statute to require new command-and-control pollution standards.

The 1990s saw reauthorization of the 1974 Safe Drinking Water Act and the Food Protection Act, which repealed the controversial Delaney Clause, from the Pure Food and Drug Act. The latter was an urgent priority for the agriculture lobby and its resolution was a bipartisan cause in 1996, an election year. Subsequently, under Clinton and Bush, Congressional activism waned and an increasingly assertive executive branch shifted the balance of power between the bra...