Wednesday, April 6, 2011

EPA Dodges Major Bullet... But it Won't Be the Last Time Congress Fires its Gun

In a 50-50 vote, the Senate today rejected the Energy Tax Prevention Act.  (A tiebreaking vote was not cast because the vote that took place related to cloture—which requires 60 votes.)  As a comic side note, it is worth knowing that House member Rep. Gerry Connolly (D-VA) suggested that the bill be renamed the “Koch Brothers Appreciation Act” or “Protecting Americans from Polar Bears Act.”  Regardless of what one calls the bill, however, had it become law, the bill would have stripped away a substantial chunk of the EPA’s power to use the Clean Air Act to address climate change.  While the bill would have preserved the more stringent mobile emission standards put in place to address greenhouse gases, it would have put an end to other regulations under the Act, particularly the regulations associated with major stationary sources.  While the House is almost certain to pass the bill later today and while President Obama would have been likely to veto the bill had it made it to his desk, all of this doesn’t matter much given its death in the Senate.

(For those following the legislative process closely, note that the Senate also decisively rejected a number of other amendments, including amendment 215 proposed by Senator Rockefeller, amendment 236 by Senator Baucus, and amendment 265 by Debbie Stabenow.) 

Despite the fact that that the Senate rejected the bill, it should not come as a surprise to anybody that Congress is rethinking EPA regulations.  And, this is not just because many in Congress oppose addressing climate change (though that is true).  In fact, it was not all that long ago that many of the present defenders of the EPA’s greenhouse gas regulations assumed that Congress would and should preempt these regulations.  The major difference being that at the time, these same advocates assumed that we would not only dump these regulations but also replace them with some other form of regulation, most likely a cap-and-trade.  For example, consider the following response to a question that Administrator Lisa Jackson received at a press conference held at the White House on the day that the Obama administration announced its intention to regulate light-duty vehicles many months ago:

Q: If Congress doesn't come through, though, on some sort of climate legislation, would you be ready to pull the trigger using the Clean Air Act with some of the work that you’re doing right now?

ADMINISTRATOR JACKSON: I have said before that I actually hope that doesn’t come to pass. I believe very strongly that legislation is the preferable route. It allows for a comprehensive economy-wide discussion of the issues that are going to make for a successful program. That being said, the Clean Air Act is a strong and extraordinarily successful piece of legislation. It has made huge differences in air quality in our country.

And we have an obligation under the law, based on the Supreme Court ruling, to continue to do our job. And that is what we will do. I have also said that I believe strongly that that job can be done in a way that's, step one, that's reasonable, that complies with all administrative processes.

It is uncertain whether, as some have argued, the EPA actually used the Clean Air Act to force Congress into addressing climate change back in the days when Democrats controlled both chambers.  Regardless, the EPA is living with the reality that its endangerment finding and regulation of greenhouse gases under the Clean Air Act have come at a political cost.  While the EPA is not likely to have its statutory authority clipped by our present Congress, the EPA is not out of the woods.  It seems quite likely that it will still face a substantial budget cut or—at the very least—have to live with the burdens that go along with a mobilized opposition both inside and outside the halls of Congress.

-- Brigham Daniels

Update:  The House indeeded passed the Energy Tax Prevention Act passed by a 255-172 vote.  However, because the same bill died in the Senate, it is largely a symbolic gesture at this point.

 

http://lawprofessors.typepad.com/environmental_law/2011/04/epa-dodges-major-bullet-but-not-likely-the-last-time-congress-fires-its-gun.html

Air Quality, Climate Change, Current Affairs, Law, Legislation, US | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef014e606e8a4b970c

Listed below are links to weblogs that reference EPA Dodges Major Bullet... But it Won't Be the Last Time Congress Fires its Gun:

Comments

Oh, and I should clarify - I am not necessarily saying the CAA would not be nearly as effective as targeted legislation. But it is a concern I would have.

Blake

Posted by: Blake Hudson | Apr 6, 2011 8:06:52 PM

Great post. There really is an interesting trade-off between feeling the need to act on important issues when new legislation is unlikely to arise, and using tools that - while better than nothing - are potentially not nearly as effective as targeted legislation would be. That's what I struggle with at any rate.

Blake Hudson

Posted by: Blake Hudson | Apr 6, 2011 8:05:39 PM

Post a comment