Red States, Blue Governors

Democratic governors in deep red states can only do so much.

Democrats flipped a number of statehouses in the past two years.  In some of those states, the new governors have faced GOP legislatures.  Their travails indicate some of the limits of what a new President could accomplish with a GOP Senate.

North Carolina, Wisconsin, and Kansas are three cases in point.  I want to ask two key questions about these states:

  • How much have these governors been able to accomplish in the way of climate policy?
  • How well have they been able to cope with the coronavirus crisis?

North Carolina.

Roy Cooper won the North Carolina statehouse in 2017 by a paper thin margin. The libertarian candidate apparently diverted enough votes from the Republican candidate to push Cooper over the line. Since his election, Cooper has engaged in a series of battles with the GOP supermajority in the legislature, which has sought to reduce executive powers and entrench GOP electoral dominance.  Since they can override his vetoes, he has had to rely on the courts for support in these conflicts.

Given his inability to move legislation through the process, executive powers have been his best available option. The most prominent executive order commits North Carolina to reducing statewide greenhouse gas emissions to 40% below 2005 levels by 2025, calls for increasing the number of zero-emission vehicles in the state by 80,000, and targets a 40% reduction in energy consumption in state-owned buildings. In September 2019, Cooper accepted a state clean energy plan calling for reducing electricity-related emissions 70% below 2005 levels by 2030 and  carbon neutrality by 2050. Without legislative support, however, the Governors has limited power to achieve those goals.

Given the governor’s emergency powers, Cooper seems to have been able to take forceful action in response to the coronavirus.  Like Governors in other states, he has issued a series of executive orders declaring an emergency, closing the state’s schools, banning mass gatherings and ultimately requiring North Carolinians to shelter in place.

Wisconsin.

In Wisconsin, Tony Evers beat Scott Walker in November 2018 by about one-percent of the vote — a comfortable margin compared to Cooper’s victory in North Carolina, but still nothing to be complacent about.  Also, unlike North Carolina, the GOP falls short of supermajority control in either house.  Evers seems not to have made heavy use of executive orders, though he does have one establishing a climate change task force focusing on adaptation issues. Another executive order sets a “goal of ensuring all electricity consumed within the state of Wisconsin is 100% carbon-free by 2050.”

Evers has issued orders declaring an emergency, closing schools, banning gatherings of more than ten people, and closing non-essential businesses. He deadlocked with the legislature over postponing the Wisconsin primaries and expanding voting by mail, a dispute that was ultimately resolved against him by the court.  When he extended his “safer at home” order on April 16, GOP legislative leaders expressed anger and frustration, demanding a plan for reopening.

GOP leaders have now sued, requesting that the courts accelerate reopening.  Stay tuned to see how that works out.  Even though the Wisconsin Supreme Court has an arch-conservative majority, they might turn out to be reluctant to second-guess the use of emergency powers.

Kansas

In Kansas, Laura Kelly beat Kris Kobach by a comfortable five points, with some help from independent candidates. As in North Carolina, Republicans hold supermajorities with both houses. In Oct. 19, Kelly announced a new state energy plan.  Among other things, the plan would reduce regulatory barriers to rooftop solar. She also seems to have made some good appointments.  But mostly she has been focused on fixing the budget and the school system, both of which were left in disastrous shape by her predecessor.

In terms of the coronavirus, Kelly closed the schools and issued a stay at home order.  The GOP legislature was incensed that she did not exempt churches from the restrictions.  It attempted to delegate its powers with regard to the coronavirus to a seven-member group, the  Legislative Coordinating Council.  The Legislative Coordinating Council overruled her restrictions on churches. She went to court and obtained a ruling invalidating the delegation of legislative powers to that group.

Kelly’s emergency powers run out at the beginning of May unless she gets approval to renew them.  Whether that will happen in time is unclear.

What this means for the new President.

It shouldn’t be surprising that none of these governors has made a dramatic move on climate change. Governors are generally weaker within state government than is the President at the federal level.  For one thing, the President appoints high level officials, whereas often officials like state attorney generals are elected separately. And each of the three governors has the additional handicap of an overwhelmingly hostile state legislature. But this isn’t to say that the elections of Cooper, Evers and Kelly didn’t matter.  At least their administrations are recognizing the reality of the climate threat.  For instance, under Scott Walker, all references to climate change were purged from government communications. In contrast, the Wisconsin Department of Natural Resources now calls climate change a defining issue and promises to post informative webpages on the subject soon.  That’s progress.

These Democrat governors have encountered legislative resistance but on the whole have had more success in dealing with the coronavirus outbreak.  The reason is that governors tend to have strong emergency powers that allow them to bypass the legislature to a much larger extent.

A new Democratic President would surely be in a stronger position than any of these Governors. Democrats would almost certainly hold the House, and the Senate would be in no position to kneecap environmental programs.   As these states with divided government indicate, however, there are limits to how far you can advance climate policy without legislative support.  Emergencies such as the coronavirus provide more room for executive action despite an unsupportive legislature.

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About Dan

Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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