The Center for Climate, Energy, Environment and Economics hosts Professor Tim Duane, Visiting Professor of Law at University of San Diego School of Law and Professor of Environmental Studies at the University of California, Santa Cruz, for "The Limits of Presidential Power in Deconstructing the Administrative State."
President Trump has called for significant deregulation in the area of environmental protection, using executive orders to address such items as the Clean Water Rule, and the Clean Power Plan, and U.S. participation in the Paris Agreement. Congress has also used the Congressional Review Act to set aside a number of regulatory actions designed to protect the environment under former President Obama. One of the President's key advisers has also called for "the deconstruction of the administrative state" as a broader policy goal.
This presentation explores the scope and limits of executive authority for environmental deregulation, beginning with the structural separation of powers principles that animate the "Steel Seizure" cases 70 years ago (Youngstown Sheet & Tube Co. v. Sawyer, 72 S.Ct. 863). It contextualizes the limits on Presidential power through both the judiciary (e.g., the "Travel Ban," delays in the EPA Methane Reporting Rule) and Congress (e.g., attempts to repeal-and-replace the Affordable Care Act). Finally, the backstop of state environmental law and potential federal preemption will be addressed for furthering climate law and policy through sub-national state and local government actions as the EPA pulls back. Both federalism and separation of powers are key constraints on the President's deregulatory agenda. But Congressional consent for that agenda would radically alter the structure and role of the federal administrative state. The critical role of Congress in enabling the Trump Administration's deregulatory agenda therefore gives a few key Senators enormous power. The President's power is therefore ultimately dependent on Congress' exercise of power.