Opinion

Energy Policy Is the 'Canary in the Coal Mine' of Executive Power Expansion

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Posted: Jun 06, 2018 1:00 PM
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Energy Policy Is the 'Canary in the Coal Mine' of Executive Power Expansion

Presidents Barack Obama and Donald Trump might seem like opposites in many regards, but they adopted similar strategies regarding energy policy: both presidents sought to implement their energy priorities through expanding executive authority, contorting ill-suited statutes and regulatory processes to achieve their policy aims. Using executive power to expand energy regulation and create new subsidies has questionable long-term efficacy. It only delays the real work that needs to be done to update America’s environment and energy laws. 

In Obama’s case, he sought to use the Clean Air Act to address carbon emissions with the Clean Power Plan after Congress failed to reach consensus on a carbon plan. For Trump, he wants to help struggling blue collar workers in America’s coal communities by using the Defense Production Act and section 202 (c) of the Federal Power Act to keep struggling coal plants open. Trump faces an uphill climb to even being to discuss with members of Congress specific worker retraining or insurance programs to assist displaced coal miners. Both scenarios represent a President pursuing a policy agenda in the absence of congressional action, through not just the robust use of available executive powers, but also through expanding his power by using old laws in ways previously unimaginable.

Let us start by taking the presidents at their word, that Trump wishes to help struggling blue collar families in America’s coal communities, and that Obama wanted America to lead with responsible, affordable, clean energy. Cramping a contemporary policy aim into the structures of decades old statutes, increased regulation, and promoting “preferred” energy sources is hardly the optimal outcome in either case. Neither the Clean Air Act, the Defense Production Act, or the Federal Power Act were intended to be used as Presidents Obama and Trump have tried, respectively. But what viable alternatives are available to presidents seeking to address issues of national concern in the face of a hyperpartisan Congress that will not work with a president to legislate on these difficult matters?

The real story here is therefore not a regulatory boondoggle of questionable benefit, like the Clean Power Plan, or the Trump administration’s equally problematic subsidy program to bailout non-economic power plants. Rather, it is mutual Congressional and presidential failure to engage in civil dialogue and ultimately legislate together on controversial energy issues. Too many of our environment and energy laws are woefully outdated, inflexible, and challenged to adapt to our modern needs. Congress, it seems, would prefer grandstand on energy for political purposes than work with presidents to make the tough choices required to pass some desperately needed updates. This kind of collaboration is possible if Congress really wants to make a change, as proved by the recent reforms to the Toxic Substance Control Act.

America needs sensible policies that ensure clean air, emissions reductions, and affordable energy. We also need to find a fair way to aid blue collar workers suffering from the consequences of not just changes in energy markets — natural gas and renewables are simply more economic than coal today — but also from workforce evolution as a result of globalism, automation, and artificial intelligence. In the case of coal, for example, most coal mining jobs over the last two decades have been lost due to automation. Keeping coal plants open via subsidy might preserve some jobs, but it will not bring back the coal jobs already lost to robotics and other technological advances.

When one president employs executive power to act unilaterally without Congressional buy-in, the next president can use the same powers to reverse course. The most relevant example is Trump's work to repeal the Obama-era Clean Power Plan. This ping-pong threatens both our democracy and our economy. On the economic front, this state of affairs creates regulatory uncertainty for the private sector, which is now routinely navigating the painful reality of energy policy made by executive fiat. Congressional gridlock is a vulnerability to our democracy when one considers the potential dangers of ever-expanding executive power. When Congress does not act, when we do not work together to constructively address pressing social challenges, it can be expected that a president may decide that they must take independent action. Further unpredictability is introduced into the situation because we do not know who will be president next, nor how they might seek to use this growing presidential authority.

Those who criticize the Obama Clean Power Plan or Trump’s Strategic Electric Generation Reserve ought to step up and offer alternative solutions — especially our Congressional leadership. The obvious solution is that Congress should work with our presidents in a civil, bipartisan manner to address these priority concerns legislatively rather than continue to pass the buck to the Executive's administrative state. Until then, expect American presidents to continue to push the envelope of executive power in order to implement their policy agendas.