Biden Directs Department of Energy to Flout the Law

One of the President’s most important jobs is to “take Care that the Laws are faithfully executed” as it says in Article II Section 3 of the Constitution. Put another way, an important purpose of the Executive Branch is to execute the laws. The Department of Energy, however, does not want to do that with research and development on oil, natural gas, and coal. In fact, they have gone so far as to say that it is “a central ethic of our [Fossil Energy] office is that if a non-fossil energy option exists today, it should always be preferred to the use of fossil energy.”

In July 2021, the Biden administration changed the name of the Fossil Energy Office at the Department of Energy from the Office of Fossil Energy to the Office of Fossil Energy and Carbon Management (FECM). There is nothing wrong with changing the name of the office and there is nothing wrong to note that part of the work the office does is “carbon management.” The problem is that they would like to ignore their statutory instructions—the law—in the name of climate change.

On December 6, 2021, the Office posted an explanation of their name change. They wrote, “This is not a rebranding; it is a historical shift in focus.” The problem is that this gets it exactly wrong. The Department of Energy is free to rebrand the office, but they are not free to shift focus or execute their own goals. Congress writes the laws explaining the focus and goals and then the Executive Branch executes those directives.

But the Biden administration doesn’t want to execute the law as it is written, but rather to make up their own statutes to execute. For example, DOE writes, “we have refocused FECM to center our work on climate.” The problem is that Congress has not authorized DOE to “center their work on climate.” There is no statutory authorization to only focus on climate. DOE’s work on fossil energy is authorized by 42 U.S.C. 16291. It instructs DOE to work on improving energy from fossil energy including reducing greenhouse gas emissions. For example, here is part of the office’s objectives:

(2) Objectives

The programs described in paragraph (1) shall take into consideration the following objectives:

(A) Increasing the energy conversion efficiency of all forms of fossil energy through improved technologies.

(B) Decreasing the cost of all fossil energy production, generation, and delivery.

(C) Promoting diversity of energy supply.

(D) Decreasing the dependence of the United States on foreign energy supplies.

(E) Improving United States energy security.

(F) Decreasing the environmental impact of energy-related activities, including technology development to reduce emissions of carbon dioxide and associated emissions of heavy metals within coal combustion residues and gas streams resulting from fossil fuel use and production.

… [emphasis added]

Congress instructed the Department of Energy to work on reducing GHGs from fossil energy, but that is only part of a list of things they are supposed to work on, not the only focus. The Department of Energy is also supposed to work on decreasing the cost of oil, natural gas, and coal production for Americans. But the Department of Energy would like to ignore that.

One of the most concerning things in DOE’s statement is its rejection of fossil energy overall. The original version of the statement posted on DOE’s website states, “a central ethic of our [Fossil Energy] office is that if a non-fossil energy option exists today, it should always be preferred to the use of fossil energy.” This statement was apparently a little too honest because DOE edited the statement and removed that sentence. But that sentence is certainly the spirit of the statement as a whole.

The statement also talks about climate goals, net-zero goals, and decarbonization goals. The problem with these goals is that Congress has not set them. Again, Congress has legislative power and the Executive Branch is supposed to execute the law, not extra-statutory goals of temporary office-holders with personal beliefs.

With this rebranding and refocusing, DOE is thumbing their noses at Congress and our very form of government with its divided roles. It is critical that Congress forces DOE to focus on its statutorily defined mission and not allow DOE to ignore the law.

*This article was originally published by the Institute for Energy Research.

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