How Could USDOT Organize Around Climate Under Biden?

How Could USDOT Organize Around Climate Under Biden?

December 16, 2020  | Jeff Davis

President-elect Joe Biden has indicated that climate change will be one of the biggest, if not the absolute biggest, focus of his Administration. In addition to making climate change one of only four areas of policy focus on his transition website (along with COVID-19, the economy, and civil rights), he has already named former Secretary of State John Kerry as a “Special Presidential Envoy for Climate” who will have Cabinet rank and will sit on the National Security Council. And news broke yesterday that Biden will name former EPA Administrator Gina McCarthy as White House “climate czar,” heading a new Office of Domestic Climate Policy and carrying a charge to coordinate climate initiatives throughout the federal government.

The transportation sector is now the biggest producer of greenhouse gas emissions in the U.S. economy (28.2 percent of emissions in 2018, versus 26.9 percent for electricity production, according to the EPA). And if one counts general-purpose infrastructure along with transportation, the total rises even higher, with domestic production of iron, steel and cement adding another 1.2 percent of total U.S. emissions. (Worldwide, cement kilns are responsible for about 8 percent of all GHG emissions, most of that from China.)

But the Department of Transportation is infamously “stovepiped” by mode of travel. The National Highway Traffic Safety Administration, which shares responsibility with the EPA for regulating emissions from cars and light trucks, reports directly to the Secretary. The Federal Highway Administration, which will almost certainly be asked to reissue the Obama Administration rule measuring GHG emissions from highways and to weave emission reductions into highway project evaluations and approvals, reports directly to the Secretary. The Federal Transit Administration, which is expected to see a massive push towards electric buses under Biden, reports directly to the Secretary. Ditto for the Federal Railroad Administration, the Federal Aviation Administration, and even the Federal Motor Carrier Safety Administration (emissions of heavy trucks), all of which will also have to put emissions reductions into many of their plans and programs.

Implementing climate-centric policies across all the modes at USDOT will be a massive undertaking. How should the new Secretary handle it, from an organizational perspective?

Assistant Secretary for Climate? If Secretary Buttigieg had taken office in the first 45 years of the Department’s existence, the answer would be simple – appoint an Assistant Secretary of Transportation for Climate (or Energy, Emissions and Environment, or whatever you want to call it), and have that person staff all the climate-related meetings in all the modal administrations, accompany the Secretary or Deputy Secretary to all the climate meetings at the White House or other Cabinet agencies, and work with Congress and stakeholders on DOT’s climate policies.

The original 1966 law creating the Department authorized four Assistant Secretaries of Transportation whose jobs could be defined by the Secretary, and many early Secretaries put their own imprint on the positions. The first SecDOT, Alan Boyd, created one for International Affairs because he thought that should be a cross-cutting priority across modes. The second Secretary, John Volpe, created a new Assistant Secretary to focus on his own top cross-cutting priorities – “Environment and Urban Systems.” Then, after a huge wave of high-profile airline hijackings, he created an Assistant Secretary for Safety and Consumer Affairs.

Secretary Brock Adams, who had just chaired the House Budget Committee, created the first Assistant Secretary for Budget and Programs. Secretary Federico Pena created a new Assistant Secretary for Aviation and International Affairs to handle the extra aviation workload given to DOT (but specifically not to the FAA) when the Civil Aeronautics Board was finally abolished. (See the sidebar at the end of this article for a full list of how the AS jobs evolved over the years.)

Creating a new Assistant Secretary for Climate would make all the sense in the world – but the problem is, such a move would now require a change in law. A side effect, perhaps inadvertent, of the Schumer-Alexander law in 2012 reducing the number of executive branch jobs subject to Senate confirmation was to write, in statute, the job descriptions of the Assistant Secretaries of Transportation, freezing them in time as they were defined in 2012. An amendment to the DOT’s organic statute (49 U.S.C. 102) would now be necessary to create an Assistant Secretary for Climate, as would an amendment to the annual appropriations act, which nowadays micromanages the budget for each Assistant Secretary’s office in the text of the law itself, leaving no funding for a new Assistant Secretary (were one to be created).

DOT Climate Council? Since the Assistant Secretary roles were frozen, the typical way for DOT to address major cross-cutting issues is to form an internal council with representatives from each of the modal administrations and the appropriate Office of the Secretary personnel. These councils are usually chaired by the Deputy Secretary. A Credit Council was created in 2004 to come with, and oversee, a common strategy and evaluation criteria for the various DOT loan programs. A Freight Policy Council was created in 2012 to come up with a multimodal national freight strategy.

The Trump Administration has created two such councils – the ROUTES Council to coordinate rural transportation issues across modes, and the NETT Council (New and Emerging Transportation Technology) to look at “jurisdictional and regulatory gaps that may impede the deployment of new technology.” (A third council, on transportation data collection and use across modes, may be created before Team Trump leaves office.)

The problem with such a council is that none of the issues addressed by those previous councils were anywhere close to the President’s top policy priority – but climate will be. A multimodal coordinating council behind closed doors at DOT might be effective but it would be mostly invisible. And, in addition, having all of these councils chaired by the Deputy Secretary only works so long as each council doesn’t take up that much of the Deputy Secretary’s time. The Deputy Secretary is the chief operating officer of the entire department, and if the effort to address climate change across all modes is really going to be the priority that Biden says it will be, it needs to be somebody’s top priority, and the Deputy has a lot of other things to do.

Empower the Under Secretary, or an Existing Assistant Secretary? The Under Secretary of Transportation for Policy is a fairly recent development, created by law in 2002 as a third-in-command for the Department, to “provide leadership in the development of policy for the Department, supervise the policy activities of Assistant Secretaries with primary responsibility for aviation, international, and other transportation policy development.” But the position was created to lure one specific person (a person who had already served four years as Assistant Secretary for Policy and did not want to come back to DOT at the same job and pay grade). And, as such, there is a lot of redundancy between the Under Secretary for Policy and the Assistant Secretary for Transportation Policy.

Secretary Buttigieg could empower either the Under Secretary, or the Assistant Secretary for Transportation Policy, to be the DOT point person for climate, without having to go to Congress to get a change in law to redefine or rename the position. This would take a huge chunk of that person’s weekly workload, so the informal division of labor between the Under Secretary and the Assistant Secretary would have to be adjusted so as to remove a lot of non-climate things from the purview of the one who was tasked with climate.

This could also be done in tandem with a department-wide coordinating council, just by having the Under Secretary or Assistant Secretary chair the council meetings.

(Post-publication addendum: It was pointed out that much of the internal coordinating work could be handled by a deputy DOT chief of staff for that purpose, which is how some other large projects that touch most of the modes have been handled. But staff like that usually aren’t allowed to make public speeches or testify before Congress. Regardless of which official is put in charge, the essential part is that the Secretary must make extremely clear to everyone that the official has been empowered to act on the Secretary’s behalf when setting deadlines and that appeals over the head of the official will be frowned on.)

No matter how Secretary Buttigieg decides to organize things, we can expect climate, energy and emissions issues to permeate almost all aspects of transportation policy and decision-making under the Biden Administration.


How the Duties of the Assistant Secretaries of Transportation Evolved Over the Years

(Until Congress Froze Them in Place in 2012)

The original Department of Transportation Act of 1966 provided that the original DOT modal administrations – FAA, FHWA, and FRA, along with the Coast Guard – report directly to the Secretary. But in addition, there would be four Assistant Secretaries of Transportation, all subject to Senate confirmation, “who shall perform such functions, powers, and duties as the Secretary shall prescribe from time to time” (plus an Assistant Secretary for Administration to be appointed directly by the President).

Alan Boyd helped write the 1966 law and was then named to be the first Secretary of Transportation, in charge of getting the Department set up by April 1967. In a December 1968 oral history interview, he discussed how:

…the first thing we had to do was try and see how we could devise and define the functions for the four assistant secretaries…Two of them fell out very rapidly. Public Affairs, and Research and Technology. And then we got into the whole issue, and I knew we wanted an assistant secretary to be responsible for what ultimately became Policy Development, but for the whole approach to the system from primarily an economic point of view…

…and then we got into the question on a fourth assistant secretary – what should his functions be, and we were quite enamored of the idea that we ought to have an Assistant Secretary for Urban Affairs, feeling quite rightly that this was going to be the area of greatest concern and greatest impact. And also realizing that there was no good coordinating mechanism short of the Secretary for the relationships between highways, mass transit, and airport, and airport access, and things of that nature. And after we kicked that around for quite awhile, we decided we couldn’t afford to do that because it would have been presumptuous as all hell in view of the fact that the Urban Mass Transit [Administration] was over in HUD, and we were gearing up to take it away from them…

…And then we got into a discussion of whether or not this fourth assistant secretary should be responsible for safety. And that seemed to make a fair amount of sense, but part of the problem there was that by law the safety functions of the FAA were redelegated, or were delegated from me – from the Secretary – to the Federal Aviation Administrator. Also by law, the rail safety functions were transferred directly to the rail administrator. And we could see nothing but trouble coming out of that if we tried to set up an Assistant Secretary for Safety, particularly with the concern on the part of the Congress and the aviation community about the Secretary trying to get his hands in this…

So, I had been very much interested in international transportation .It seemed to me that most of the developed countries, particularly Japan and those in Western Europe, had to have somewhat similar transportation problems to those in the United States…Also, I had been for some time concerned about the way we developed positions on international transportation matters, particularly with regard to multilateral activities, such as [ICAO and IMCO]. I had a feeling that there was too much policy being made by technical people, and that the considerations often were not broad enough. So, I thought that we needed somebody to deal with that. And it seemed a fairly innocuous sort of thing to set up an Assistant Secretary for International Affairs

Sec. Alan Boyd (Johnson Administration), 1967-1968:

  1. Policy Development
  2. Public Affairs
  3. International Affairs & Special Programs
  4. Research and Technology

Upon taking office in early 1969, the second Secretary, John Volpe, decided to create a new Assistant Secretary to focus on his top priorities – the environment, and urban transportation (since DOT had been successful in taking mass transit away from HUD in 1968), which he filled with former Seattle mayor J.D. Braman. In order to make room for the new AS, Volpe combined the Policy AS and the International Affairs AS into one office.

Sec. John Volpe (Nixon Administration), 1969-1971:

  1. Policy and International Affairs
  2. Public Affairs
  3. Environment & Urban Systems
  4. Research and Technology (later renamed Systems Development and Technology)

Then, in late 1970, Volpe decided he needed to create a new Assistant Secretary for Safety and Consumer Affairs to coordinate “those safety, security, and consumer affairs functions deserving attention and coordination at the secretarial level.” (He first named the outgoing Coast Guard Commandant, Adm. William Smith, to the post, and Smith was then followed by legendary Tuskegee Airmen commander Gen. Benjamin O. Davis – Davis had been brought to DOT by Volpe in 1970 to coordinate the response to the air hijacking epidemic.) In order to make room for the new post, Volpe demoted Public Affairs below the AS level and put back in the Secretary’s immediate office.

Sec. John Volpe (Nixon Administration), 1971-1973:

  1. Policy and International Affairs
  2. Safety & Consumer Affairs
  3. Environment & Urban Systems
  4. Research and Technology (later renamed Systems Development and Technology)

After Nixon got rid of Volpe following the 1972 elections (by promoting him laterally to be U.S. Ambassador to Italy, which made sense, because as Secretary, Volpe could not stop pestering Nixon about getting more Italian-Americans hired in top government positions), his successor, Claude Brinegar, decided to prioritize relations with other parts of government, creating a new Assistant Secretary for Congressional & Intergovernmental Affairs. He made room for this by demoting urban issues and by combining the environment with safety and consumer affairs. Secretary Bill Coleman, under Gerald Ford, kept this arrangement.

Secs. Claude Brinegar & William Coleman (Nixon-Ford Administrations, 1973-1976):

  1. Policy, Plans & International Affairs
  2. Congressional & Intergovernmental Affairs
  3. Environment & Consumer Safety Affairs
  4. Systems Development and Technology

Jimmy Carter’s first SecDOT was Congressman Brock Adams (D-WA), who came to the office from being the first real chairman of the new House Budget Committee. Accordingly, he created a new Assistant Secretary for Budget and Programs (a job ably filled by the great Mort Downey, who had been the first-ever transportation analyst for the Budget Committee). Not only did Adams make room for that new job by abolishing the former AS for Environment & Consumer Safety Affairs, he also moved the entire R&D apparatus by creating a Research and Special Programs Directorate, with a Director, who was not a Senate-confirmed Assistant Secretary. (The Directorate later became the Research and Special Programs Administration from 1978-2004.) And since Jimmy Carter was famously a penny-pincher, Adams left the fourth Assistant Secretary post visibly vacant. His successor under Carter, Neil Goldschmidt, maintained this structure.

Secs. Brock Adams & Neil Goldschmidt (Carter Administration, 1977-1980):

  1. Policy and International Affairs
  2. Budget and Programs
  3. Governmental and Public Affairs
  4. [no 4th Assistant Secretary]

When Ronald Reagan took over, his first Secretary, Drew Lewis, kept this basic alignment, except he demoted Public Affairs back to an office reporting directly to the Secretary. His successor, Elizabeth Dole, kept this for her first year of office.

Secs. Drew Lewis & Elizabeth Dole (Reagan Administration, 1981-1983):

  1. Policy and International Affairs
  2. Budget and Programs
  3. Governmental Affairs
  4. [no 4th Assistant Secretary]

Then, in September 1983, Dole (a former public affairs person herself) reestablished the Office of Public Affairs as a new Assistant Secretary for Public Affairs (just like there had been under Secretaries Boyd and Volpe). This was maintained under her successor, Jim Burnley, as well as the two successors under the George H.W. Bush Administration, Sam Skinner and Andrew Card.

Secs. Elizabeth Dole, Jim Burnley, Sam Skinner, & Andy Card (Reagan-H.W. Bush Administrations, 1983-1992):

  1. Policy and International Affairs
  2. Budget and Programs
  3. Governmental Affairs
  4. Public Affairs

During the Bush-Clinton 1992 transition, the outgoing Assistant Secretary for Policy and International Affairs, Jeff Shane, met with the head of the Clinton DOT transition team, Federico Pena, and told him that since the abolition of the Civil Aeronautics Board in January 1985, and the transfer of its functions to DOT (most of which wound up in Shane’s office), the domestic consumer service and international negotiation issues relating to airlines took up the majority of that office’s time, to the exclusion of surface transportation issues which he thought were more important. Shane recommended giving aviation its own Assistant Secretary.

Pena then became Clinton’s first Secretary of Transportation in 1993 and basically did just that, splitting up Shane’s old job into an “Aviation and International Affairs” AS and a “Domestic Transportation Policy” AS. He made room for this by once again demoting Public Affairs to the Secretary’s office. Successors under Clinton, George W. Bush, and Barack Obama maintained this structure.

(Starting with the fiscal 2003 DOT Appropriations Act, a proviso started riding in each year’s bill ensuring that no federal funds could be used to re-establish an Assistant Secretary for Public Affairs, so even if Secretaries Mineta or a subsequent Secretary had wanted to do so, they couldn’t bring that one back.)

And, speaking of Jeff Shane, when Norm Mineta became Secretary in 2001, he wanted Shane to come back to DOT. But Shane, having already been Assistant Secretary for four years from 1989-1992, didn’t want to come back to the same job, so Mineta got Congress to put language in the 2002 maritime security bill creating a new Under Secretary of Transportation for Policy, to be the #3 position at DOT, and getting the same pay as the Deputy Secretary, so Shane would come back.

By law, the Under Secretary “shall provide leadership in the development of policy for the Department, supervise the policy activities of Assistant Secretaries with primary responsibility for aviation, international, and other transportation policy development…”

The four Assistant Secretary jobs, as they were defined by the Secretary from 1993-2012, had their definitions enshrined in permanent statute in 2012 by the law that cut down the number of positions subject to Senate confirmation so that henceforth, the Budget and Programs AS would no longer be subject to confirmation by the Senate.

Secs. Federico Pena, Rodney Slater, Norm Mineta, Mary Peters, & Ray LaHood (Clinton, W. Bush, Obama Administrations, 1993-2012 – enshrined in law August 10, 2012 by P.L. 112-166):

  1. Aviation and International Affairs
  2. Domestic Transportation Policy (quickly renamed “Transportation Policy”)
  3. Budget and Programs
  4. Governmental Affairs

After having four Assistant Secretaries (plus Administration) since 1967, in January 2014, the fiscal 2014 DOT Appropriations Act abolished the Research and Innovative Technology Administration (which had replaced RSPA) and created a new Assistant Secretary for Research and Technology in its place. The FAST Act of 2015 enshrined this new position into permanent statute as a fifth AS in addition to the other four that had been locked in permanent law since 2012.

As prescribed in law since the enactment of the FAST Act of 2015 (P.L. 114-94)

  1. Aviation and International Affairs
  2. Transportation Policy
  3. Budget and Programs
  4. Governmental Affairs
  5. Research and Technology
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