Weathervane

Mar16

Why CAIR Matters for GHGs

Greenhouse gases (GHGs) are the sexy pollutant. “Traditional” pollutants like sulfur dioxide (SO₂) and nitrous oxides (NOx) get less attention, with media, legal, research, and to a lesser extent regulatory attention devoted to GHGs. These pollutants have much greater health impacts than GHGs, however. Moreover, how the EPA regulates them under the Clean Air Act (CAA) might shed some light on how they will regulate GHGs under the same statute.

Unfortunately, the EPA’s master plan for new SO₂ and NOx regulations, the Clean Air Interstate Rule (CAIR) is in legal limbo. In North Carolina v. EPA, the D.C. Circuit found such substantial flaws in the rule that it vacated CAIR completely in 2008, before backing down somewhat and directing the EPA to fix a number of problems. In the meantime, the rule has remained in effect - CAIR is zombie regulation.

Nobody likes zombie regulation. It’s hard to determine environmental benefits and for industry to determine costs, and markets in tradable allowances don’t work very well when the future structure of those markets (and even whether they will exist) is unclear. Whatever the EPA does to address the court’s concerns with CAIR is therefore likely to be an improvement on the current situation.

The EPA is expected to release the required revisions to CAIR soon. Some of the issues the court identified with CAIR in its original form are that compliance deadlines for it and other regulations do not match, and that the EPA exceeded its authority by making changes to the congressionally-created Title IV trading program for SO₂.

The largest problems for the court, however, were with the trading programs created or modified by CAIR. How the EPA addresses these concerns will be the most interesting part of the new CAIR and will shed the most light on how far the EPA can go in using emissions trading methods under existing CAA authority—something that may be important for future GHG regulation.

Will emissions trading survive?

The original CAIR created new interstate trading programs for SO2 and NOx or expanded existing ones. The court, however, cast real doubt on whether these trading programs are viable. Specifically, the court held that the CAA authority (NAAQS) used by the EPA requires actual reductions in emissions from each state that contributes to pollution in downwind areas (it is largely this interstate pollution “transport” problem that CAIR is designed to address). The trading programs in the original CAIR would have reduced pollution from upwind states, but free trading among states meant that the EPA could not guarantee that every upwind state would reduce its emissions.

It’s hard to see how the EPA can comply with the court’s interpretation of the CAA here and keep interstate trading as part of the revised CAIR. If you have interstate trading, you reduce costs of compliance but at the expense of certainty over where emissions will be reduced. It is just this certainty that the court claims the CAA requires. Trading may survive in the form of purely intra-state markets, or the EPA may devise some hybrid regulation that includes some command-and-control elements that would force reductions in emissions in all upwind states.

The structure the EPA chooses—and whether the court deems it permissible—is important. There is some chance that the EPA will choose (or be forced) to regulate GHGs under the NAAQS program. If the EPA does go down this route, CAIR and the courts’ treatment of it will provide the precedent for a GHG trading system. Can such a system be implemented nationwide under the CAA if only intrastate trading is permitted for other pollutants? If GHG regulations are not driven by contributions to other states' pollution problems, the EPA might be able to distinguish them from the CAIR regulations. But SO₂ and NOx are the best examples by far of emissions trading programs under the CAA. If the new CAIR kills or guts these programs, the precedent for any GHG trading scheme - at least under the NAAQS - will be weakened.

The proposed new CAIR should be released by the EPA in the near future. The character of the emissions trading programs it creates will tell us a lot about the future of the CAA for GHGs and beyond.

Nathan Richardson is a Visiting Scholar at RFF.

Published: Mar-16-10 | 0 Comments

Mar08

The EPA and GHGs: Sometimes the Little Things Matter Most

EPA, Clean Air Act

Major pieces of legislation from the Hill, blockbuster rulemakings, and Supreme Court cases get all the policy headlines. Sometimes, though, small things can make just as much of an impact. Last week’s completion by the EPA of a proposed revision to an internal memo —the Johnson Memorandum—could be an example of this, though it looks like it will be most notable for maintaining the status quo. Still, it’s interesting to look at what impact it could have made (and may yet, if the final version is different).

The memo and today’s revision have to do with a bit of Clean Air Act (CAA) arcana: which polluters have to get preconstruction permits to build new plants or modify existing ones? This question seems superficially to be interesting to only the most pedantic of CAA wonks, but the answer has real effects for the cost and effectiveness of policy.

These permits are a big deal. They are expensive and time-consuming to get and require facilities to install the “best available control technology” (BACT). Since the EPA will very shortly regulate greenhouse gas tailpipe emissions, the question has pressing relevance. The EPA’s controversial “tailoring rule” is aimed at minimizing the impact of these permit requirements (called PSD in CAA lingo) by restricting them initially to larger sources. But the even more immediate question of when those large sources have to get permits is determined elsewhere in the Johnson Memo. For more on how these pieces fit together, see the chart here.

The EPA has traditionally required only emitters of pollutants subject to actual control under the CAA to get PSD permits. This means that emitters of pollutants that are only reported, not regulated, don’t have to get permits. It also means that emitters don’t have to get permits until regulation actually forces action; regulation just being announced isn’t enough. The Johnson Memo, released in 2008 by the Bush-era EPA and named for the then EPA administrator, confirmed this traditional approach.

Now that the EPA is about to regulate GHGs, the agency is reopening this issue. If you thought that the 19-page Johnson Memo was a comprehensive treatment, get ready for the 77-page reconsideration. In the proposed version of reconsideration (released last year), the EPA claims its preferred option is to stick with the traditional approach. This would probably result in permit requirements for GHGs beginning in January 2011, according to Administrator Lisa Jackson’s letter to Congress last week. But the proposed reconsideration mentions alternatives, such as a permit requirement when an endangerment finding for a pollutant is made, or even when reporting is required. If one of these options is chosen by the EPA in the final reconsideration, emitters will require permits now (since GHGs are subject to reporting in 2010 and an endangerment finding was made in December).

As Jeff Holmstead of Bracewell & Giuliani discussed at RFF’s Clean Air Act event last week, this timing issue really matters for emitters. If an emitter has a new plant or modification awaiting a permit, whether a permit application is processed before or after GHGs become part of the BACT inquiry is very important. Uncertainty makes planning difficult. Combined with the uncertainty surrounding the tailoring rule, GHG emitters are unsettled and unhappy. Unsettled and unhappy industries tend to sue agencies and lobby Congress. Environmentalists also care about timing. They want GHGs to be a part of the permit process as soon as possible, and are likely to exert pressure of their own.

Since the Johnson Memo and the new reconsideration of it are EPA interpretations of its own statutes, they are very hard to challenge in court (they are entitled to Chevron deference). This makes pressure on the agency directly (through the comment process) or indirectly (through Congress) the most likely avenues of attack from either side.

Since the proposed reconsideration confirms the existing approach, I think it will be relatively unchanged in its final form. If the EPA does pursue a change in this policy, however, the effects will be large. This is just one of countless illustrations of how, in Washington as much as anywhere, the little things matter.

Nathan Richardson is a Visiting Scholar at RFF.

Published: Mar-08-10 | 0 Comments

Mar05

How Reliable are Cost Estimates for Environmental Regulation?

EPA

Anecdotal information often drives a perception that environmental regulation is responsible for significant economic damage to regulated industries, including reduced productivity and lost jobs.

Thus, opponents often claim that rules will be catastrophically costly. Proponents argue the contrary. A 2000 RFF analysis set out to examine how well the EPA and other regulatory agencies fared in predicting the actual costs of environmental regulations.

It turns out, the pattern of agency projections included both overestimates and underestimates but, on average, the results were more skewed toward the former. A number of factors seem to account for the miscalculation, including difficulty predicting technological innovation, timing of implementation, modifications made during the rulemaking process.

We found that EPA and other regulatory agencies tend to overestimate the total costs of regulations; their estimations of the per-unit of pollution eliminated by regulations tend to be more accurate, however. Calculations of the total cost of regulation include not only the “unit costs” multiplied by the number of units of pollution avoided, but also estimates of the basic adjustment process and costs of change itself. Of 28 rules examined, 14 projected inflated total costs, while pre-regulation estimates were too low for only 3 rules. These exaggerated adjustment costs are often attributable to underestimates of the potential that technological change could minimize pollution abatement costs.

You can read a summary of the report here (PDF).

Published: Mar-05-10 | 0 Comments

Mar04

Some Quick Thoughts on the Rockefeller Proposal

EPA, Congress, Clean Air Act

Image courtesy Cliff1066 via Flickr Sen. John D. Rockefeller (D-WV) today introduced a bill which, if passed, would become the “Stationary Source Regulations Delay Act.’’ This bill, like Sen. Murkowski’s proposal that I’ve written about before, would curtail the EPA’s authority to regulate greenhouse gas (GHG)emissions under the Clean Air Act (CAA). There are major differences between the proposals however and I think these are worth clearing up. I suspect media reports will group the two proposals together, even though the practical and political effects will be very different.

First, even though both proposals target EPA CAA authority over GHGs, they are mirror images of each other. The Murkowski proposal would kill the EPA’s endangerment finding for mobile sources (cars and trucks). In the short term, this would block all EPA efforts to regulate GHGs under the CAA, though in principle the EPA could make a new endangerment finding under a different section of the act and go after other kinds of sources. The Rockefeller proposal would leave the endangerment finding and mobile source regulation intact but, as its title indicates, would impose a two-year moratorium on EPA regulation of stationary-source (power plants, etc.) GHGs.

The Rockefeller bill makes much more sense, I think. This isn’t to say I personally support it, just that it addresses concerns over EPA regulation of GHGs much more effectively than the Murkowski proposal. Mobile-source regulation is the one piece of the CAA/GHG process that has broad support. The regulations the EPA plans to finalize this month were a product of compromise with the auto industry last year. All of the comprehensive climate bills I know of leave EPA authority over mobile sources intact. It’s EPA regulation of stationary sources, and in particular requirements for preconstruction GHG permits, that is causing the most controversy and putting the most pressure on Congress. If Congress wants to relieve this pressure then the Rockefeller path is the right one, not Murkowski.

Second, the political differences are obvious though I’m skeptical about whether the end result will be any different. Rockefeller is a Democrat, and while Murkowski has support from some moderate Dems, this new proposal seems pitched more directly at the center-left core of the Senate. Unlike Murkowski’s proposal, it will need 60 votes to pass, but it is probably more likely to get them. Similar bills are being proposed by House Dems. This makes it much more likely, I think, that the bill will pass one or both houses—though I leave it to more adept vote-counters to make the call.

Even if the bill did pass both houses, it would still have to be signed by President Obama. I cannot imagine the president would sign the bill. It blocks action on GHGs that the president has publically stood behind. Also, and maybe more importantly, the bill would take an arrow out of the quiver of the executive branch. No President likes that. Until and unless that changes—or unless Congress somehow comes up with a veto-proof majority—the Rockefeller bill won’t become law.

Nathan Richardson is a Visiting Scholar at RFF.

Published: Mar-04-10 | 0 Comments

Mar03

The Path to GHG Regulation Under the Clean Air Act

EPA, Clean Air Act

The course the Environmental Protection Agency will take in its regulation of greenhouse gases (GHG) is still being hashed out. There are important and subtle differences to weigh in regulatory approaches for mobile and stationary sources as well as existing and newly constructed facilities. Still, paths to regulation are interconnected and, as the EPA moves forward, watching the evolution of individual policies could shed some light on the greater picture.

This chart, created by RFF visiting scholar Nathan Richardson as part of a larger project involving other RFF researchers, provides a snapshot of the course to GHG control taking into consideration the tools the EPA has at its disposal and its likely course to implementing them.

As Nathan has explained in greater detail here and here, the EPA is working on rules for its regulation of GHGs from mobile sources. Details of its mobile sources regulation are expected later this month. Following that course of action through the chart, you can see that the EPA is likely on course to regulate emissions from new or modified sources (i.e. a newly constructed power plant). Regulation of existing, unmodified emissions sources would be the next step, but there is much less certainty about what this regulation would look like.

The agency's next steps and how the process may be legislated, regulated and litigated were the topic of discussion at an RFF First Wedesday seminar today. As is clearlly illustrated with the variety of regulatory options in the chart, there is plenty of room for debate on the road to regulation. Video, audio and an event transcript from the event will be posted here as they become available and you can expect further insight and more discussion of the role of the Clean Air Act in future Weathervane posts.

Tiffany Clements is managing editor of Weathervane.

Published: Mar-03-10 | 0 Comments

Feb19

Will Lawsuits Kill the EPA Endangerment Finding?

EPA

The Environmental Protection Agency’s December greenhouse gas endangerment finding has rapidly become the bête noire of opponents of federal action on climate change. The prospect of such a finding has been controversial in some circles since its genesis in the Massachusetts v. EPA Supreme Court decision. Since being finalized, it has come under threat from Senator Murkowski and others in Congress who want to block it with new legislation. Now the endangerment finding is facing another challenge: lawsuits from industry, political groups, and even the state of Texas asking courts to block it. Is this a real danger for the EPA?

My short answer is no. I don’t think there is any real chance of a court cancelling the endangerment finding based on one of these suits.

The argument presented in the petitions is basically that the “Climategate” emails and errors subsequently discovered in the Intergovernmental Panel on Climate Change (IPCC) climate change report undermine the science on which the EPA based the endangerment finding. Since this information came to light only recently (and not during the notice-and-comment period), the petitioners argue the EPA should reconsider the finding. Texas (the party whose petitions I’m most familiar with) has, in fact, asked the EPA itself to reopen the finding and only petitioned the D.C. circuit court to review the issue by essentially cc:ing the EPA petition to the court. This raises the first roadblock the petitioners will face: they need to exhaust remedies with the agency before the court will act. I greatly doubt the EPA will reopen the finding, but it could in principle do so. Assuming it does not, would the D.C. Circuit then entertain the prospect of forcing the EPA to reconsider the finding?

Again, I don’t think so. The court would review the agency’s action under the Administrative Procedure Act’s “arbitrary and capricious” standard. In practice, this is similar to rational basis review. Agencies win unless they fail to provide any basis for their action or that basis is extraordinarily flawed.

In the context of the endangerment finding and the science behind it, this is the right approach. The IPCC report and mainstream climate science in general are widely but not universally accepted. This is normal. Science is never perfect and even when there is “consensus” in a field it is not universal. This is true of all of the science on which regulatory agencies rely to support their regulation, not just climate science. Regulatory agencies are designed to be able to deal with this uncertainty and however imperfectly they may do so, there is no reason to think that a court would do any better and every reason to think that a court would probably do worse. The D.C. circuit simply isn’t equipped, either in terms of expertise or procedure, to pick winners in climate science debates. The arbitrary/capricious standard of review – which is specified by statute but in reality defined by courts themselves – reflects this. The result, in this and many similar cases in the past, is substantial deference to the agency.

Unless the petitioners can show the EPA failed to support its conclusions at all, failed to consider some body of evidence, or engaged in some misconduct, the court will rule in the EPA’s favor. The petitioners have not alleged anything close to this.

I suspect the petitioners know this and that therefore the petitions are more of a political move than a legal one.

Nathan Richardson is a Visiting Scholar at RFF.

Published: Feb-19-10 | 1 Comment

Feb04

Administration Doubles Down on Biofuels, CCS

Biofuels, CCS, EPA, FutureGen, Obama Administration

Striking while the post-State-of-the-Union/budge release iron is hot, President Obama Wednesday unveiled details of his administration’s plans for the next generation of energy technology. With the FY 2011 budget backing loans for the development of nuclear power plants eating up several days of the news cycle, yesterday’s announcement shifted energy and environment watchers’ gaze toward biofuels and carbon capture. From the Environmental Protection Agency’s release:

The EPA has finalized a rule to implement the long-term renewable fuels standard of 36 billion gallons by 2022 established by Congress. The U.S. Department of Agriculture has proposed a rule on the Biomass Crop Assistance Program (BCAP) that would provide financing to increase the conversion of biomass to bioenergy. The President’s Biofuels Interagency Working Group released its first report – Growing America’s Fuel. The report, authored by group co-chairs, Secretaries Vilsack and Chu, and Administrator Jackson, lays out a strategy to advance the development and commercialization of a sustainable biofuels industry to meet or exceed the nation’s biofuels targets.

In addition, President Obama announced a Presidential Memorandum creating an Interagency Task Force on Carbon Capture and Storage to develop a comprehensive and coordinated federal strategy to speed the development and deployment of clean coal technologies. Our nation’s economy will continue to rely on the availability and affordability of domestic coal for decades to meet its energy needs, and these advances are necessary to reduce pollution in the meantime. The President calls for five to ten commercial demonstration projects to be up and running by 2016.

The EPA’s move on biofuels puts the Obama administration in compliance with the Energy Independence and Security Act of 2007 (EISA) but finding the right alchemy of fuels to meet the standard is likely to be a subject of political and logistical debate, not to mention the difficulties in calculating the GHG implications.

As for CCS, yesterday’s announcement regarding the proverbial “clean coal” marks some of the first official murmurs from the White House on the technology since it announced its plans to kick FutureGen back in gear last summer. I’ll be interested to see what the president’s task force can pull together in a 180 days that will put CCS within reach in the next five years.

Tiffany Clements is managing editor of Weathervane.

Published: Feb-04-10 | 0 Comments

Jan29

Could the Murkowski Resolution be Good News for Congressional Action on Climate?

EPA, Congress

A somewhat odd coalition of (mostly) moderate Republicans and Democrats have signaled support for Sen. Murkowski's resolution that would kill the EPA endangerment finding for greenhouse gases (GHGs). Most people who favor GHG regulation, including most major environmental groups, have come out against the resolution. But might it actually be a good thing for congressional action on climate? I’ve heard an idea from people here at RFF (who have better D.C. intuitions than I do) that explains how it actually might be.

For reasons I explained in an earlier post, I don't think the resolution has any chance of becoming law. Assuming that's right, voting for the resolution is a consequence-free way of registering opposition to EPA regulation of GHGs. Having this kind of opportunity can actually make real climate legislation more likely.

I'm abstracting a bit, but imagine there are three groups of senators on climate issues: the left, who want climate action and are less concerned about whether it comes from Congress or the EPA; the right, who don't want any climate action; and moderates, who would support some form of GHG regulation but don't want the EPA to regulate. Even in a (now-hypothetical) world where the Democrats have 60 votes in the Senate, this third group of moderates controls whether climate legislation gets passed.

Now look at how the Murkowski resolution fits into this. The left will vote against it, and the right for it—their absolutist positions make the choice easy. Moderates (as always) have a tougher choice, but many will probably support it, as evidenced by those who have signed on already. The resolution presents an opportunity to show opposition to EPA GHG regulation and have it on their records. They can return to their constituencies, credibly claim opposition to looming EPA regulation and use this to defend support for work on new, comprehensive climate legislation. “I tried to stop this, it didn’t work, and now I’m working on a compromise” might be the stump speech. In short, they can use the EPA as a punching bag to defend themselves. That's no fun for the agency, of course, but you can probably see how it might help congressional action on climate over the long run.

If this story is right, Democrats on the Senate Environment and Public Works Committee should allow the resolution to reach the floor, even if they oppose it. If the bill dies in committee, moderates won't have a chance to register their votes. More generally, it’s also a reason for almost everyone to be happy the resolution is out there. Even if you oppose it, it might help reach your goals eventually.

It's possible this account is a little optimistic, but its definitely not crazy. In fact, it’s politically very clever. I wish I could take credit for it (it’s been kicking around here at RFF for a few days, from what I gather). In any case, it certainly goes some way toward explaining the odd coalition lining up behind the resolution.

Nathan Richardson is a Visiting Scholar at RFF.

Published: Jan-29-10 | 0 Comments

Jan27

Will Courts Set Climate Policy through Nuisance Suits?

Adaptation, Congress, EPA, Environmental Justice

A polluter emits something that hurts people in a community. These people get together and sue the polluter. Courts then side with the victims under the common-law tort of nuisance, and award damages (or an injunction shutting down the polluter). Before the era of modern environmental regulation, all pollution-related disputes were solved this way.

Regulation has made environmental nuisance suits much less common and less necessary, but they have not disappeared completely. The problems presented by climate change are broadly similar—polluters emit greenhouse gases (GHGs) that ultimately cause harm. In the absence of government regulation of GHGs, can nuisance suits be used to force polluters to reduce emissions or to compensate for adaptation costs?

Suits seeking answers to these questions exist and are making their way through courts now. Some of them have made headlines, such as that filed by Kivalina, Alaska—a town on a barrier island formerly protected by Arctic sea ice, but which now faces increasing erosion. The New York Times reported on the case in an article that also discusses some similar cases, including perhaps the most widely-reported, Connecticut v. AEP. In that case a group of states and private conservationist landowners are suing power companies under a similar nuisance theory.

So are these cases going to end up with major judgments that effectively set policy? Is big tobacco going to be the model for redressing harms from climate change? If tobacco is the model, I wouldn’t get your hopes up. But it is likely that these lawsuits will end up playing a big role in the policy process.

Despite the relatively high-profile coverage of some of the cases, there is not much for advocates of GHG regulation to be excited about. No climate nuisance case (that I know of) has been successful. The biggest “victory” so far has been in Connecticut v. AEP. Still in that case, the Second Circuit simply reversed a lower court’s comprehensive dismissal of the plaintiffs’ claims. The appellate court ruled that courts could decide the case in principle (it was not a “political question”) and that the states did have standing to sue over climate harms. This says almost nothing about the plaintiffs’ likelihood of success on the merits of the case. Causation and damages will be big hurdles for the states when the lower court reaches the merits.

It’s also possible that EPA action could preempt these suits. The Second Circuit ruled that the lack of EPA GHG regulation left the field open for nuisance suits, but strongly implied that any EPA regulation would preempt them. Connecticut was decided just before the EPA released its endangerment finding for mobile sources in December. It’s likely that any nuisance suit aimed at auto manufacturers would fail for preemption reasons now that the EPA has committed to regulating mobile-source GHGs. If the EPA, as many expect, moves to regulate stationary-source GHGs, then Connecticut itself would presumably be preempted also.

This link between EPA regulation and nuisance lawsuits, however, creates a lever through which those suits might still have a big effect on how climate policy gets made—as Jonathan Zasloff at UCLA has pointed out. As nuisance suits proceed, they will put increasing pressure on the EPA to regulate to preempt them since regulation is generally perceived as a superior approach (especially by the EPA itself, one expects). Both nuisance suits and EPA regulation put pressure on Congress to enact climate legislation.

Opponents of action on climate are effectively stuck playing whack-a-mole - if they succeed in blocking action in Congress and through the EPA (possibly by getting a Murkowski-style resolution passed), nuisance suits will proceed with unpredictable results. If they quietly let the EPA regulate, those suits go away, along with a lot of pressure on Congress. But Clean Air Act regulation is a bitter pill to swallow. The most likely long-term result seems to be congressional action—opponents can’t push for inaction forever with the twin threats of EPA regulation and nuisance suits.

In short, nuisance suits make business-as-usual on climate much less likely, even if they are not themselves very likely to succeed. This should be cause for some optimism about the long term if you are frustrated by the current inability of Congress to enact climate legislation.

Nathan Richardson is a Visiting Scholar at RFF.

Published: Jan-27-10 | 0 Comments

Jan22

Sen. Murkowski vs. the EPA, Round 2

EPA, Congress

Yesterday, Senator Lisa Murkowski, R-AK, introduced a “disapproval resolution” that would block the endangerment finding for mobile-source greenhouse gases (GHGs) the EPA released last month. This move is different from the senator’s previous attempts to attach different legislation aimed at reducing EPA authority to regulate GHGs to other bills, most recently the debt ceiling increase currently before Congress (for more on those attempts, see my recent post). The most important substantive difference between the two measures is that the senator’s earlier legislation would have blocked EPA authority going forward to regulate stationary sources, while this resolution is aimed squarely at the steps the EPA has already taken to regulate mobile sources.

Here are some quick thoughts on what the resolution would do, and whether it is likely to pass.

Last month, the EPA issued an endangerment finding under Section 202 of the Clean Air Act (CAA). This allows (and requires) the EPA to regulate GHG emissions from vehicles, which it plans to do with fleet emissions standards starting in March (for more on what the endangerment finding does and does not do – see my earlier post on the topic). Sen. Murkowski’s resolution would essentially cancel the finding.

This is made possible by the Congressional Review Act, a 1996 law that gives Congress a 60-day window after new regulations are issued in which they can be overruled. Think of it like a reverse line-item veto: Congress gets to review some executive branch actions and decide whether to allow them. The analogy isn’t perfect, of course—the line item veto was ruled unconstitutional, for one thing. The joint resolutions required to cancel agency actions are also new legislation which the president must sign—Congress can’t act alone.

If the resolution were to pass and the president were to sign it, therefore, it would be as if the endangerment finding had never happened. As a result, the EPA would not be able to regulate GHGs from mobile sources. The EPA could, in principle, still regulate stationary sources under other provisions of the CAA, but a Congress that vetoed action on mobile sources would presumably do the same for stationary sources. Sen. Murkowski obviously believes this is a good thing, ostensibly because it allows Congress more time to enact its own climate legislation. Others, including Sen. Barbara Boxer, D-CA, oppose the resolution, claiming that it eviscerates important EPA authority. Boxer’s opinion is important, for reasons I’ll explain.

So will the resolution pass? I very much doubt it. I was very skeptical about the likelihood of Sen. Murkowski’s earlier attempts to block EPA GHG authority passing, and I’m skeptical for most of the same reasons here. There are four hurdles the resolution needs to pass to become law:

1) It has to get enough votes to get out of committee (Environment and Public Works)

2) It has to get enough votes to pass the Senate
3) It (or something similar) has to pass the House

4) The President has to sign it (or both houses have to override a veto)

I don’t think the bill is particularly likely to pass these hurdles. I might be wrong about that with respect to one or more of them, but it’s still very unlikely that it could pass all four.

At the first hurdle, Sen. Boxer’s opposition signals a tough fight in the committee she chairs. The second hurdle is substantially easier for this resolution than for Sen. Murkowski’s earlier moves, principally because only a 50-vote majority is needed to pass (CRA resolutions are filibuster-proof). Sen. Murkowski already has support from a few Democrats. It still may be difficult to get to 50 votes, but certainly not impossible. Of the four, this is probably the easiest for the resolution. Passing the House, with a larger Democratic majority, would be much harder.

Even if the resolution survived this gauntlet, however, I still don’t see any reason why the president would sign it and I doubt there are enough votes in either house to override a veto.

I will say that I am a little less certain that the resolution will fail than I was about Sen. Murkowski’s earlier attempt to amend the debt ceiling to restrict EPA authority. Not by a lot, but the fact that there is some Democratic support for the resolution in such a finely-balanced Senate makes it possible that it will pass there (assuming it isn’t killed in committee first).

As I said in my earlier post, I’m still not certain what Sen. Murkowski’s policy goals are given the two measures she has advanced recently. The earlier measure would have removed authority to regulate anything but mobile source GHGs, while this resolution removes only that authority. An increasingly plausible conclusion is that Sen. Murkowski simply opposes all EPA regulation of GHGs under the CAA. This might not be shocking, of course, but it does create a problem for climate legislation going forward. Neither the House or Senate climate bills discussed last year include provisions for mobile-source regulation. If Sen. Murkowski’s resolution prevails, and she is serious about action on climate, any new legislation will have to find a way to address mobile sources.

Nathan Richardson is a Visiting Scholar at RFF.

Published: Jan-22-10 | 0 Comments

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