The authority of a governmental executive to issue an executive order has recently been a hot topic in the politico-legal world. President Obama’s issuance of Executive Order 13682 sparked a national debate over the Executive’s power to establish and enforce his own laws on controversial issues. The validity of executive orders may very soon become a serious question for local political and legal figures in Washington State as well.

On April 29, 2014, Governor Inslee issued Executive Order 14-04. This order, titled “Washington Carbon Reduction and Clean Energy Action,” laid out the framework by which the Governor seeks to impede the effects of climate change and push Washington further into compliance with state-mandated carbon reductions. A focal point of this order was the establishment of a Carbon Emissions Reduction Taskforce (CERT) responsible for recommending the shape of future carbon emissions limits and markets.  On November 14, 2014, that 21-member Taskforce submitted its report, a 96-page evaluation of the history and current state of both emissions-based and price-based market mechanisms. The report made four critical findings:

  1. Both emissions-based and price-based market mechanisms offer advantages to a carbon reduction strategy. Both mechanisms are similar in their ability to internalize carbon prices, cover a broad range of emissions sources, and allow for a range of strategies to meet statutory reduction obligations.
  2. Either strategy will require caution and care in its design and implementation to avoid negative social and economic impacts. Other jurisdictions’ attempts at carbon emissions reductions show that the state will have to design a framework that stabilizes the market over the long term, considers the impact on lower income communities and communities of color, takes into account the effect on businesses, reduces public health impacts, and gives assurance to the general population.
  3. Successfully achieving the State’s statutory carbon emissions levels will require a comprehensive approach. The State must implement complementary and interactive policies that harmonize the various sectors involved in carbon emissions, particularly transportation.
  4. Further analysis will be necessary to mitigate the unknowns. There is still a great deal that the Taskforce was not able to address. Continued analysis of the potential impact of policy options is essential to a successful approach.

The Taskforce’s report emphasizes the numerous practical challenges facing any serious carbon emissions reduction framework. With an analysis from the Office of Financial Management suggesting that the State’s emissions reduction goals could result in a significant spike in the price per gallon of gasoline (an analysis that the Governor’s office insists has been taken out of context), the potential political cost of establishing clean transportation policy is almost certain to slow down any legislative process. One possibility is that Governor Inslee, who has declared that this “should be a year for action,” may simply take policy implementation into his own hands by establishing a low carbon fuel standard through executive order.

There is, however, an important question as to whether such an order would be enforceable. Any fuel standard Governor Inslee may establish by executive order would likely face a stiff legal challenge. Washington’s constitution provides for the separation of powers between the different branches of state government. Though the executive branch has broad enforcement powers, under Article 2 of the Washington constitution, the lawmaking powers of the State are invested in the legislative branch alone. The quandary with executive orders that purport to make law without legislative action is that they may overstep the limits of executive power.

This is not the first time this question has arisen in Washington State. In 1991, the Attorney General’s Office was asked whether then-Governor Gardner had the authority to “create obligations and responsibilities having the force and effect of law by issuing an executive order.” The challenged order involved the protection of the wetlands in Washington. Attorney General Eikenberry, tasked with answering this question, provided an unequivocal response: no. Without an express grant of power from either the Washington State constitution or a state statute, Mr. Eikenberry found that the Governor has no authority to create new laws by executive order.

Examples of when such authority has been expressly granted aren’t particularly common, but they do exist. For instance, RCW 43.06.010(12) and RCW 43.06.220 together provide the Governor with the power to declare a state of emergency and to establish procedures with which to deal with such emergencies once declared. When Mt. St. Helens erupted in 1980, then-Governor Ray exercised her statutory authority by issuing an executive order declaring prohibited zones around Mt. St. Helens during a state of emergency, and her order was held to have the force of law.

Aside from his ability to declare an air pollution emergency, there does not appear to be any law explicitly granting the Governor the power to set law in order to achieve carbon emissions reductions. To the contrary, RCW 70.235, a statutory chapter on limiting greenhouse gas emissions, generally only refers to the Governor in respect to receiving reports from the department of commerce or designating individuals to be accountable for climate change initiatives. Similarly, RCW 80.80.030 and RCW 80.80.120, both related to the reduction of greenhouse gas emissions, expressly give the Governor the power to suggest policy recommendations to the legislature rather than impose them himself at will. Past examples  clearly illustrate that the force of an executive order mandating policy for carbon emissions reduction in Washington will largely depend on the state legislature’s future willingness to provide Governor Inslee with authority to act. It is unclear at this point whether the legislature is prepared to do so. If not, any executive order issued by Governor Inslee will likely result in a legal battle, mirroring the current national one, over the power of an executive to unilaterally create laws for the perceived public good.