Does Waxman-Markey have emergency Presidential powers?

The Obama administration and the Democrats have begun building a nasty reputation for hiding draconian elements of legislation, from “comparative effectiveness” rationing to potential Internet shut-downs.  Senator David Vitter says he’s found another hidden within the Waxman-Markey bill that has already passed the House that would give Barack Obama the power to declare a national emergency on the basis of greenhouse-gas levels.  If true, it would undermine the entire notion of a cap-and-trade system — and give the President dictatorial powers over energy production and manufacturing. But is it true?


Here’s how: The bills require a federal declaration of a “climate emergency” if world greenhouse gas levels reach 450 parts per million. Guess what? The Pacific Northwest National Lab says it is a virtual certainty that level will be reached within a few months. The bill then requires the president to “direct all Federal agencies to use existing statutory authority to take appropriate actions…to address shortfalls” in achieving needed greenhouse gas reductions.

When Vitter asked EPA Administrator what would be done in such a situation, she refused to say. So it must be asked: Would the president be empowered to do things like nationalize whole sectors of industry, ban coal use, restrict private automobile use, or whatever else the “emergency” requires?

The Examiner’s David Freddoso reports that Sen. David Vitter, R-LA, is holding a news conference later today concerning this provision. Vitter wonders if companies that support cap-and-trade in the hope they will profit from going green realize what could happen to them soon after enactment. More to the point, we wonder what the American people will do when they realize what is actually going on here.

For those companies looking to cash in on Obama’s promise of a “green economy,” the market may disappear before it gets started if this clause gets invoked by Obama, Freddoso argues:

The result is a a scenario in which the law not only permits but in fact requires the president to “direct all Federal agencies to use existing statutory authority to take appropriate actions…to address shortfalls” in emissions cutbacks.

The bill’s language places an unusually broad mandate upon the president to act in the event of this “emergency” situation.” In a letter to Vitter, EPA administration Lisa Jackson wrote that she does not know what her agency would do. “It is premature to describe exactly what additional actions EPA may take until such an analysis is conducted,” she wrote.

But declaration of this “climate emergency” could result in federal agencies denying all discretionary permits for carbon-emitting industries, and EPA itself could impose non-attainment status upon the entire United States. “In that context, the carbon credits won’t matter,” Vitter told me yesterday.

If a future president tries to go easy on industry, environmental groups are sure to litigate based on the clear language in the law, forcing his hand.

“This provision was not focused on to any significant extent during the House debate,” said Vitter. The climate change bill passed the House this summer, hours after hundreds of pages of amendments were added to it. Vitter said he plans to write industry leaders who are supporting the climate bill to ask whether they understand what the bill’s language would do.


The one clearly objectionable part of this is the actual trigger.  It hysterically assumes a disaster at an arbitrary level of greenhouse gases, all of which naturally occur in our atmosphere.  It also assumes that federal control of manufacturing and energy production would cause less disruption and damage than a level of 450 parts per million of carbon dioxide and other gases. Where is the evidence of this cataclysmic occurrence?  How did this level get chosen?  As far as can be seen, it appears to have been selected simply because we will hit that level within a few months.

If what Vitter claims is true, it would have implications of creating a dictator out of the American presidency.  Democrats used to shriek about the “unitary executive” philosophy during the Bush administration, which they poorly understood anyway, but claimed that Bush wanted to make himself into a dictator outside of the control of Congress.  Have those same Democrats have rushed to give the White House vast, unchecked powers over private industry and private capital that might even make Hugo Chavez blush?

Well, not exactly, no.  The language for the trigger exists within Section 705 of the Waxman-Markey bill and its identical twin in the companion Kerry-Boxer bill being floated in the Senate (S1733).  The language is too extensive to copy here, but Section 705 does create a trigger of 450 parts per million of greenhouse gases or “an increase in global average temperature 3.6 degrees Fahrenheit (2 degrees Celsius) above the pre-industrial average” that requires the executive branch to report this status to Congress and to study ways to correct for it.  Section 707 of both bills, also identical, set out the consequences of such a finding:



(a) AGENCY ACTIONS.—The President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706, and to address any shortfalls identified in such reports, not later than July 1, 2015, and every 4 years thereafter.

(b) PLAN.—In the event that the Administrator or the National Academy of Sciences has concluded, in the most recent report submitted under section 705 or 706 respectively, that the United States will not achieve the necessary domestic greenhouse gas emissions reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall, not later than July 1, 2015, and every 4 years thereafter, submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

So the big consequence is that in 2015, and every four years afterward, the executive branch will have to draft recommendations for legislative action on reducing greenhouse gases. The EPA could certainly operate outside of those parameters, which would give the President at that time a lot of power to dictate certain responses within the regulatory framework — but that power exists now, and is referenced by “existing statutory authority”, which would not mean new dictatorial powers over production. In fact, Obama has threatened to wield it on a few occasions if Congress fails to pass cap-and-trade.


That’s not to say that this bill isn’t dangerous, but it simply doesn’t do what Vitter claims. Nowhere in either bill does the term “climate emergency” appear, which Vitter claims is the lever through which the President will claim dictatorial powers. We need to focus on the real problems of the bill, chief among them that it will kill jobs to solve a problem that doesn’t exist, rather than generate false hysteria to answer false hysteria.

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David Strom 10:41 AM on December 08, 2023