Separation of Powers and the CEQ
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Presidents must select qualified persons to hold key federal posts for at least two related constitutional reasons. One, the Constitution requires the President to appoint federal officials in senior executive posts, obviously with the advice and consent of the Senate (Art. II, Sec. 2, cl. 2), and to fill vacancies that occur in those posts (Art. II, Sec. 2, cl. 3). Two, the Constitution requires the President to “take Care” that the laws are “faithfully executed” (Art. II, Sec. 3). Since no President can possibly be expected to perform all executive functions on their own, the President must select qualified individuals who can execute the laws within their trust.
In furtherance of these constitutional responsibilities, federal laws including the Vacancies Reform Act provide processes for filling vacancies in senior executive posts and constrain the ability of the President to avoid the “advice and consent” of the Senate by, among other things, limiting the time period during which a non-confirmed official may be allowed to take official action for the agency.
What happens when the President fails to fill a vacancy in a senior official slot at an agency? Can that agency—led by a temporary, non-confirmed executive branch employee—take actions carrying the force of law?
This is the topic of a November 20, 2015 letter from Sen. James Inhofe (R-OK), chairman of the Senate Committee on Environment and Public Works, to President Obama notifying the Administration that the committee “is investigating the management, activities, and operation of the White House Council on Environmental Quality” (CEQ), which has been without a Senate-confirmed chairman since February 2014 when former CEQ Chairman Nancy Sutley stepped down. A managing director—not a Senate-confirmed chairman—is currently at the helm of CEQ.
The Inhofe letter raises a variety of objections related to the ongoing vacancy at CEQ including:
A similar letter, with additional oversight inquiries, was sent to the current managing director at CEQ. For a copy of the Inhofe letters, please visit http://www.epw.senate.gov/
Partner, Baker Botts LLP
Drawing from two decades of experience in senior government, in-house corporate, and private law firm roles, Jeff Wood helps clients with federal enforcement, compliance, litigation, permitting, and policy challenges primarily in the energy and environmental fields.
Prior to joining Baker Botts, Mr. Wood served for almost two years as the Acting Assistant Attorney General (AAG) for the Justice Department's Environment and Natural Resources Division (ENRD). In that capacity, Mr. Wood led ENRD and its more than 600 attorneys and staff representing EPA, Departments of the Interior, Energy, and Defense, and other agencies in civil and criminal enforcement and defensive environmental, energy, and natural resources litigation.
As the top official in ENRD, Mr. Wood managed a complex organization with an annual budget exceeding $200 million and a docket of more than 6,000 cases and matters. E&E News noted that “Wood maintains a strong relationship with ENRD's career staff” (Greenwire, Oct. 31, 2018). He previously served on the staff of the United States Senate Committee on Environment and Public Works.
At the Justice Department, Mr. Wood oversaw the Division's civil and criminal enforcement programs and was responsible for developing legal strategies and approving briefs in key cases including filings before the Supreme Court and Courts of Appeals in coordination with the Office of Solicitor General. In this role, Mr. Wood held the highest level security clearance and worked closely with top leadership at DOJ, EPA, the Interior Department, USDA, the Energy Department, Transportation Department, FERC, NRC and across the Executive Branch, including the White House.
With many years of both private law firm and in-house legal experience, Mr. Wood has handled complex environmental enforcement, regulatory, policy, and litigation matters for electric utilities, energy companies, maritime companies, mining companies, real estate developers, financial institutions, industrial companies and manufacturers, business coalitions, associations, small businesses, and individual property owners. Drawing from his experiences in-house, Mr. Wood brings a common-sense, cost-effective, client-focused approach to his work every day.
With a strong national reputation, Mr. Wood is a frequent speaker on environmental law and policy matters, with recent speeches and presentations at the Environmental Law Institute, Harvard Law School, Vanderbilt Law School, American University Law School, American Bar Association Environmental Law Conferences, the Texas Environmental SuperConference, Air Force Judge Advocate General School's Advanced Environmental Law Course, Baker Institute's Center for Energy Studies (Rice University), and many other venues. He frequently appears in national news to share insights on significant environmental law and policy issues, including recent quotes in the New York Times, Washington Post, Wall Street Journal, Bloomberg, Law360, and E&E News, among others.