Six Washington state taxpayers have filed a lawsuit (PDF) to stop implementation of Gov. Christine Gregoire’s May 2009 Executive Order to reduce greenhouse gas emissions.  The lawsuit claims the governor exceeded her constitutional authority and invaded the province of the legislature by issuing the order, but the challenge is a real stretch in light of existing state climate change law, the Governor’s inherent power to communicate to state agencies what she wants them to accomplish, and what the Executive Order actually requires.

Washington’s Climate Law

The Washington legislature in 2008 established greenhouse gas emissions targets for the state —reduce emissions to 1990 levels by 2020; 25% below 1990 by 2035; and 50% below 1990 by 2050.  That same session also set benchmarks for reducing vehicle miles traveled, which are a key component of the state’s GHG reduction program since the transportation sector contributes a substantial share of the state’s GHG emissions.

During the 2009 session, the legislature considered SB 5735 (PDF), which would have directed the Department of Ecology to establish statewide and sector-specific GHG emission caps and criteria for forestry offsets; continue participation in the development of the Western Climate Initiative’s (WCI) cap-and-trade program; and implement an electric vehicle and alternative fuels infrastructure program.  SB 5735, however, did not pass and so Gov. Gregoire issued Executive Order 09-05 (PDF).

Taxpayer Lawsuit

The Complaint in the taxpayer’s lawsuit quotes a confidential briefing document from then-Ecology director Jay Manning stating that the Governor directed preparation of “an executive order that accomplishes what the bill would have authorized and more.” Even if true, most of the provisions in the order already are authorized by existing law, although the Complaint brushes existing statutory authority aside as “purportedly authorizing such actions.” [emphasis added]

But there’s no purportedly here.  For example, the Executive Order directs Ecology to continue participating in the WCI, and under RCW 70.235.030(1)(a) Ecology already has been told to “develop in coordination with WCI a design for a regional multisector market-based system to limit GHG emissions.” Similarly, to fulfill the statutory mandate to participate in designing the cap-and-trade system, Ecology reasonably would be expected to develop emission benchmarks by industry sector and also forestry offsets, both of which are key components of the WCI’s cap-and-trade program.

A second statute adopted in 2008, RCW 47.01.440, set benchmarks for reducing vehicle miles traveled and requires that Ecology develop a collaborative process with the Transportation and Commerce departments, regional planning councils and businesses to devise strategies, including public transportation options.  The Executive Order does virtually the same thing by directing the Department of Transportation to work with local governments, business and environmental representatives on the issue.

Directive to Agencies

Even if the legislature had not adopted the climate bills in 2008, the Executive Order still should be valid because the Governor is allowed to direct state agencies to accomplish her policies, although the directives would not have the force and effect of law.  A 1991 Attorney General Opinion, Wash. AGO 1991 No. 21 (available on Westlaw at 1991 WL 521712), issued in connection with another governor’s wetlands preservation executive order, described three basic types of executive orders: 1) general policy statements to persuade and encourage persons within and outside of government to accomplish the Governor’s policy; 2) directives from the Governor to state agencies communicating what the Governor wants the agency to accomplish; and 3) operative effect executive orders. 

According to the opinion, only the last type of order has the force and effect of law.  That does not mean that the first two types of executive orders are invalid or voidable.  Indeed, the AG’s opinion recognized that the Governor can direct state agencies to take actions to accomplish her policies and fire the agency head if he or she does not comply.

“Force & Effect of Law”

The lawsuit claims that the Executive Order is void because it improperly has the “force and effect of law,” but there is no Washington case law interpreting the term and Black’s Law Dictionary calls it “a redundant legalism.” Black’s defines it to mean “legal efficacy.”

But the actions that the order directs the various agencies to undertake—“continue participating,” “provide estimates,” “request recommendations,” “work with business to develop benchmarks,” “develop recommendations,” “develop strategies,” and “provide alternatives”—all sound like they stop well short of having any teeth to them.  Put another way, how could there be any legal consequence to anyone if the agencies provide estimates, request recommendations, work with business, develop strategies or provide alternatives?

What makes this lawsuit even more odd is that no one challenged the Governor’s 2007 executive order (PDF) that established GHG emissions reduction targets a year and a half ahead of the legislature.  What makes this later Executive Order different?  Probably nothing, except perhaps the move in California to halt that state’s climate change law, AB 32, has emboldened opponents everywhere.  To be sure the economy is in far different shape than it was in 2007, with the state’s budget in continuing dire straits, but that does not make the Executive Order an unconstitutional intrusion on the legislature’s prerogatives.  There may be other ways to challenge the state’s involvement in climate change regulation, but this lawsuit does not appear to be one of them.

CLIMATE change sceptic followed Kevin Rudd into a toilet in Washington last week in the hope of flushing out the former PM on an ETS.

But accosted as he washed his hands in the toilets of the flash Georgetown Cafe Milano, Mr Rudd left his interlocutor from conservative think tank the Cato Institute with an expletive in his ear.

While dining with an Australian friend in the Cafe Milano, Pat Michaels, the climate change warrior named in the East Anglia climate scandal emails as the man some scientists wanted to punch on the nose, spotted the former prime minister heading into the men’s room and went in hot pursuit.

Mr Michaels had been tipped off about Mr Rudd’s presence but didn’t believe it was really him.

The senior fellow at the Cato Institute in Washington asked the man washing his hands in the toilets if he was indeed Kevin Rudd—and started in on an emissions trading scheme and the scientific conspiracy on climate change as soon as it was confirmed.

A movable and colourful conversation ensued as Mr Rudd went out into the restaurant.

In his own words, Mr Michaels, in an article published in The Spectator Australia today, felt Mr Rudd was “confronting the devil in the men’s room” and didn’t take kindly to suggestions an emissions trading scheme was a waste of money.

“You can talk about this in think-tank land, but put yourself in my shoes,” Mr Rudd is reported to have said to Mr Michaels. “All my scientists at CSIRO are telling me this (climate change) is a terrible problem. What could I do?”

The exchange turned colourful, according to witnesses in the restaurant, as Mr Rudd resorted to some well-worn expletives when he realised he’d been ambushed in the toilet by a sceptic tank.

Mr Michaels reports he warned Mr Rudd the CSIRO was only telling him the bad news about climate change because “the global warming gravy train would derail” and scientists would have to fly economy class.

Witnesses said Mr Rudd railed against the Cato Institute’s conservative position and rudely rejected suggestions he should write for the conservative Australian Spectator now that he was on the back bench.

By Darren Samuelsohn and Coral Davenport, Politico

Senate Democrats pulled the plug on climate legislation Thursday, pushing the issue off into an uncertain future ahead of mid-term elections where President Barack Obama’s party is girding for a drubbing.

Rather than a long-awaited measure capping greenhouse gases - or even a more limited bill directed only at electric utilities - Senate Majority Leader Harry Reid will move forward next week on a bipartisan energy-only bill that responds to the Gulf of Mexico oil spill and contains other more popular energy items.

“We don’t have the 60 votes,” said Environment and Public Works Committee Chairwoman Barbara Boxer (D-Calif.). “So Sen. Reid’s a pragmatist. So rather than take us to a situation where we don’t have the votes, rather than do half measures, let’s wait until we can get it done and get it right. So I think it’s a smart decision.”

The writing has been on the wall all week, with advocates lowering expectations in light of continued opposition from GOP senators and some moderate Democrats.

“I don’t believe an energy bill has ever passed off the floor in less than about three weeks,” Kerry said Thursday during a town-hall style forum hosted by the Natural Resources Defense Council. “The fact is this is a very complicated bill that has a lot of moving parts. I’m very realistic about that.”

“It’s not dying,” Kerry added. “It’s not going away...We’re going to try our best to find a way to do it in the next few weeks. If we can’t do it in the next weeks, we’ll do something that begins to do something responsibly in the short term. But this will stay out there and we’ll be working on it, we’ll be asking you to talk to your senators and move them to understand why we have to get this done.”

Sen. Joe Lieberman (I-Conn.), Kerry’s partner on the climate proposal, said he had no problem with Reid delaying debate on greenhouse gas caps. “If that’s the truth, it keeps the process open for negotiating a broader utilities-only bill in September,” he said.

Kerry and Lieberman are still working with the electric utility industry, including its lead trade group, the Edison Electric Institute, on a bill slicing its emissions around 17 percent below 2005 levels by 2020.

But other Democrats have their doubts that Kerry and Lieberman will even get time for a floor debate after the August break, especially with Reid and other senators girding up for their own reelection bids.

“We’ve got very substantial constraints on our time when we get back,” Energy and Natural Resources Committee Chairman Jeff Bingaman of New Mexico said Thursday.

“I don’t think there are going to be two energy packages on the floor this year,” said Democratic Policy Committee Chairman Byron Dorgan of North Dakota. “Whatever comes to the floor on energy is going to be the package we’re going to consider.”

Read more here.