Did the governor overreach to boost climate policy?

Gov. Chris Gregoire admits that her greatest disappointment at the end of the 2009 legislative session was lawmakers’ failure to pass her climate control legislation.

In an interview with The Olympian’s editorial board, Gregoire said she went to the wings of the Senate on the last evening of the 105-day session to make a personal plea for passage of her bill, which would put limits on pollution emissions. The so-called “cap and trade” legislation would put a system in place that would set pollution limits, but allow those companies that could not meet the standards to purchase pollution credits from companies that easily meet their standards.

The measure passed the Senate largely as Gregoire wanted but was drastically watered down in the House. The bill was back in the Senate in the closing hours of the legislative session.

After the governor’s plea for passage, Senate Bill 5840 was brought to the Senate floor for a vote, then tabled. At 11:30 p.m., just a half hour before the final gavel, Gregoire sent Ecology Director Jay Manning to make one last push for adoption of Senate Bill 5840.

The pleas fell on deaf ears, and the 2009 session ended without passage of that piece of Gregoire’s legislative agenda.

Gregoire told the editorial board members she had no idea what happened behind closed doors to scuttle SB 5840. She did say that the Senate’s failure has not caused any sort of rift between the governor and Sen. Lisa Brown, D-Spokane, majority leader in the Senate and the person ultimately responsible for which bills are considered and those left to die.


What Gregoire could not get in the Legislature, she’s now trying to accomplish through an executive order.

A week ago, the governor signed Executive Order 09-05, which directed state agencies under her control to follow specific steps to “reduce climate-changing greenhouse gas emissions, increase transportation and fuel-conservation options for Washingtonians, and protect our state’s water supplies and vulnerable coastal areas.”

Gregoire said: “We can’t further delay action on climate change. This executive order benefits our economy as much as our environment. It will protect our natural resources, while creating thousands of green-collar jobs and strengthening our state’s competitiveness in the global race for a clean energy economy.”

As noted in the news release, Gregoire directed state agencies to:

 • Develop emission reduction strategies and industry emissions benchmarks to make sure 2020 reduction targets are met.

 • Work with TransAlta to reduce emissions from the company’s coal-fired power plant near Centralia by more than half.

 • Ensure Washington has trees to capture harmful carbon, while creating financial incentives for the forestry industry.

 • Work on low-carbon fuel standards or alternative requirements to reduce carbon emissions from the transportation sector.

 • Join with neighboring states and the private sector to implement a West Coast highway accessible to electric and alternative-fuel vehicles.

 • Address rising sea levels and the risks to water supplies.

 • Increase transit options, including buses, light rail and ride-share programs, and give Washington residents more choices for reducing the effects of transportation emissions.

 • Continue to work with six other Western states and four Canadian provinces in the Western Climate Initiative to develop a regional emissions reduction program design.

 • Work with the Obama administration to help design a national program that is strong and reflects state priorities.

While we agree with the governor’s goals, the question is whether she has overstepped her legal authority by sidestepping the legislative process and putting government policies in place through gubernatorial directive.

Brandon Houskeeper is a policy analyst for the Washington Policy Center, a conservative, Seattle-based research organization. He questions whether the governor can, in effect, legislate through executive order.

Houskeeper notes that in 1991 the Attorney General’s Office issued an opinion on executive orders that concluded: “The legislative authority of the State of Washington is vested in the Legislature.

“In the absence of a statute or constitutional provision … authorizing the governor to act, the governor cannot create obligations, responsibilities, conditions or processes having the force and effect of law by the issuance of an executive order.”

That certainly sounds like what Gregoire has attempted to do.

Houskeeper urges legislators to ask the attorney general for a legal opinion on whether Gregoire has overstepped her legal authority.

That’s a question that should be answered before state agencies spend time and money in pursuit of the governor’s directive.