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
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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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