With the return of the fleebagging Oregon state Senate members this week, it sounded as if the battle over cap and trade in that state was over. The Democrats had decided that they didn’t have the votes to pass the measure anyway, so the chamber hurriedly took care of the rest of the business on their plates before adjourning. Live to fight another day and let’s just get on with our lives, right? Perhaps not.

Oregon Governor Kate Brown seems to really have her heart set on getting the cap and trade program in place. And if she can’t do it through the approved legislative method, she’s now saying she may have to just take care of the matter herself using the power of the pen and the phone. (The Hill)

Oregon Gov. Kate Brown (D) said that she is prepared to use her executive powers to pass legislation aimed at cutting carbon emissions after a landmark climate bill was killed in the state Legislature following a walkout staged by local Republican lawmakers.

“Let me be very, very clear: I am not backing down,” Brown told reporters while discussing House Bill 2020 at press conference on Monday, just days after the sweeping climate bill, which sought to cap greenhouse gas emissions in the state, was killed Saturday.

“Working on legislation is my preferred approach; collaborating across the aisle and around the state,” she said, according to The Willamette Week. “However, given the uncertainty that now permeates Oregon’s political system, I am also directing my staff and agencies to explore alternative paths in case these collaborative approaches do not lead to successful legislation.

It’s a nice sounding speech, but it’s more than a bit lacking in both substance and details. First of all, the method the Governor “prefers” is otherwise known as the regular legislative process. Saying that you’re “collaborating across the aisle” just because you pass something through the legislature is disingenuous. There was not a single Republican voting in favor of cap and trade and you couldn’t even get all of the Democrats on board with it. It was only poised to pass because your party holds a supermajority in the Senate. It would still be legitimate (though very unwise) if it passed, but let’s not pretend it was a bipartisan effort.

But even leaving that aside, precisely what sort of executive action is the Governor pondering here? The cap and trade scheme would involve levying fees (effectively collecting taxes) from businesses. Where does the executive derive the power of taxation without the consent of the legislative branch? If it was simply a matter of placing new limits on emissions, I suppose it’s conceivable that such a change might be enacted from the executive branch, but a cap and trade scheme like the one under discussion goes much further than that.

If Brown attempts to draw up an executive order putting that plan into law, it should be immediately be challenged by the many employers who will be directly impacted (and harmed, giving them standing to bring the challenge). I somehow doubt such an order would survive that challenge at the federal level.