Obama Is Betting His Environmental Legacy on Hillary Clinton

The president has a plan to fight global warming, but it could be overturned by the next administration.

U.S. Democratic presidential candidates Sen. Barack Obama (D-IL) and Sen. Hillary Clinton (D-NY) shake hands during a National Association for the Advancement of Colored People (NAACP) rally to mark Martin Luther King Jr. Day, in Columbia, South Carolina, 21 January 2008.
National Journal
Clare Foran
June 16, 2014, 5:34 p.m.

Even if the Obama ad­min­is­tra­tion gets its sweep­ing con­trols on car­bon emis­sions from power plants in­to fi­nal form as ex­pec­ted in one year, the pres­id­ent will still have to wait for his suc­cessor to seal — or undo — his hoped-for en­vir­on­ment­al leg­acy.

The reg­u­lat­ory re­gime to lim­it green­house gases from ex­ist­ing power plants, un­veiled in draft form earli­er this month, stands to be­come the center­piece of Obama’s cli­mate agenda. And top ad­visers to the pres­id­ent have pro­claimed that at­tempts to dis­mantle the rule are doomed to fail.

But a vari­ety of av­en­ues ex­ist to change the policy down the road, even if the reg­u­la­tions are made fi­nal in June 2015 as an­ti­cip­ated by the En­vir­on­ment­al Pro­tec­tion Agency. An­oth­er ad­min­is­tra­tion could re­write or simply not en­force the reg­u­la­tions — a likely out­come if a Re­pub­lic­an wins the White House in 2016. If, say, Hil­lary Clin­ton suc­ceeds Obama, he might not have as much to worry about.

There are plenty of real-world ex­amples to show how ma­jor reg­u­la­tions can be changed after a new oc­cu­pant moves in­to the White House. The Obama ad­min­is­tra­tion, for in­stance, has already over­hauled a slate of en­vir­on­ment­al reg­u­la­tions that Pres­id­ent George W. Bush put on the books.

Case in point: In 2005, the Bush ad­min­is­tra­tion put the fin­ish­ing touches on a rule to curb mer­cury emis­sions from power plants. Three years later, the U.S. Court of Ap­peals for the D.C. Cir­cuit threw out the reg­u­la­tion. The Bush ad­min­is­tra­tion asked the Su­preme Court to re­con­sider. But the Obama ad­min­is­tra­tion later asked the court to deny the ap­peal. In 2011, Obama’s EPA pro­posed a new rule that’s widely con­sidered by en­vir­on­ment­al­ists to be more strin­gent than the pre­vi­ous policy.

Fed­er­al agen­cies have slowly but surely plastered over Bush ad­min­is­tra­tion en­vir­on­ment­al policy — largely by re­work­ing rules that didn’t hold up in court. EPA re­wrote Bush-era reg­u­la­tions to rein in air pol­lu­tion blow­ing across state lines, and the agency plans to toughen ozone stand­ards that date back to the days Obama’s pre­de­cessor held of­fice. The In­teri­or De­part­ment is also re­vis­ing Bush ad­min­is­tra­tion reg­u­la­tions on moun­tain­top-re­mov­al coal min­ing.

Fu­ture pres­id­ents could take a sim­il­ar tack. The ad­min­is­tra­tion is rush­ing to wrap up the glob­al-warm­ing rule be­fore Obama leaves of­fice. But after the power-plant reg­u­la­tions are fi­nal­ized, states will have an­oth­er year to sub­mit plans out­lining how they ex­pect to com­ply. Leg­al chal­lenges are vir­tu­ally guar­an­teed to out­last the ad­min­is­tra­tion.

In­dustry groups and con­ser­vat­ives are already plot­ting strategy to pick apart the rule. And if parts of the reg­u­la­tion need to be re­writ­ten or the rule is thrown out en­tirely, its fate will rest largely in the hands of who­ever lives in the White House.

“Mas­sa­ging this rule is likely to be­come a top pri­or­ity for fu­ture ad­min­is­tra­tions,” said Douglas Holtz-Eakin, pres­id­ent of the con­ser­vat­ive think tank Amer­ic­an Ac­tion For­um and former dir­ect­or of the Con­gres­sion­al Budget Of­fice dur­ing the Bush ad­min­is­tra­tion. “It’s not easy to roll back reg­u­la­tion, but op­pos­i­tion to the rule is strong and it’s not go­ing away.”

Even if the glob­al-warm­ing rule is not re­writ­ten, it could still be un­der­mined at the top reaches of the ex­ec­ut­ive branch in oth­er, more subtle, ways. An­oth­er ad­min­is­tra­tion could sit on its hands when it comes time to en­force the man­date. EPA could also delay mak­ing re­vi­sions to the rule if part of it is knocked down in court or could over­look lackluster ef­forts by states to com­ply.

And here too, the Obama ad­min­is­tra­tion may have set pre­ced­ent. In 2010, EPA agreed to is­sue reg­u­la­tions that would curb green­house-gas emis­sions from re­finer­ies. But four years later, those rules have yet to sur­face. The ad­min­is­tra­tion hasn’t re­nounced its pledge to rein in re­finery pol­lu­tion. But it has re­leg­ated the re­spons­ib­il­ity to the back burn­er while it fo­cuses on the glob­al-warm­ing rule and oth­er ini­ti­at­ives.

“This ad­min­is­tra­tion has per­fec­ted the ar­gu­ment that even with a leg­al ob­lig­a­tion they can delay ac­tion be­cause they have oth­er pri­or­it­ies,” said Lisa Hein­zer­ling, a Geor­getown Law School pro­fess­or and seni­or cli­mate policy coun­sel to former EPA ad­min­is­trat­or Lisa Jack­son. “That could come back to haunt any­one who cares about cli­mate change.”

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