It has been taken for granted on the left that if Congress doesn’t pass clean energy legislation, the EPA will step in to regulate greenhouse gases under the Clean Air Act. The threat of that eventuality was supposed to bring intransigent industries and legislators to the table. Only it hasn’t really worked as intended — prospects for legislation are looking increasingly dim, particularly with Brown’s win last night in Massachusetts.
Does that mean EPA regulations are inevitable? Har har. Nothing in politics is inevitable. If legislation goes down in flames, expect a huge fight.
[Want to catch up on the why's and wherefore's of EPA regs? Read this post.]
Thus far the fight against EPA is being led by Sen. Lisa Murkowski (R-Alaska), who has emerged as a key figure in efforts to block or delay Democratic clean energy initiatives, despite her purported concern over climate change. (On the interwebs, they call such folks “concern trolls.”) Let’s take a look at a few of the weapons in Murkowski’s arsenal.
1. Appropriations rider
Last year, Murkowski threatened to attach a rider to the annual EPA funding bill that would block funding for implementation of GHG regs. It would have been a political disaster, blocking not only regulations on power plants and factories (so-called stationary sources) but the auto efficiency increases that have already been carefully worked out between EPA and the Dept. of Transportation. Reid managed to talk her out of it, but she’ll be emboldened by the loss of the Democratic supermajority and Reid, well, he’s got lots of problems on his hands these days. Her office has said she’s considering trying it again.
I wrote about this tactic in a previous post — the idea is to piggyback on an appropriations bill, which requires only a bare majority to pass. Since appropriations bills contain all kinds of goodies for all kinds of congresscritters, there’s lots of pressure to vote for them. This is how Republicans blocked Clinton’s efforts to boost CAFE standards for almost five years.
Today, Murkowski may or may not introduce a more carefully tailored amendment that would block the EPA only from implementing regulations on stationary sources (it will be attached to a bill on raising the debt ceiling). She’s been wavering on whether to put forward the amendment, which her ally Sen. Chuck Grassley conceded on Monday has little chance of passing. She caught a ton of heat last week when it emerged that she’d written it in consultation to a pair of dirty energy lobbyists at Bracewell Giuliani, and it’s only been building. See:
That will probably burn her enough to make her back off this time. But the same amendment could be attached to any number of bills going forward.
3. The Congressional Review Act (CRA)
This is the nuclear option. It would rescind the EPA’s endangerment finding entirely and thereby eliminate its authority over both mobile and stationary sources. Furthermore, the administration would be prohibited from passing a regulation “substantially the same” as the one overruled, so the constraint on the EPA would effectively be permanent.
The little-known 1996 law, part of Newt Gingrich’s Contract with America signed into law by Clinton, permits Congress to review new regulations passed by the administration and, by passage of a joint resolution, overrule them. The joint resolution can not be filibustered — debate is explicitly limited to 10 hours. It must be passed by majorities and both houses and signed by the president to go into effect. It was successfully used just once, by the Bush administration in 2001, to overrule some Clinton ergonomics regulations.
As detailed in “The Mysteries of the Congressional Review Act,” in Harvard Law Review, there’s no obvious justification for the law — after all, if you’ve got majorities in both houses and the president on your side, why not just pass a new law? There are fairly limited circumstances, usually in the transition between administrations, when the planets would align for the law to have even a chance of success, and they are not now so aligned. So why has Murkowski been threatening to use it? Read on.
Can these efforts succeed?
Odds are that none of Murkowski’s efforts will become law, at least not under the current administration, for the simple reason that any one of them would have to be passed by the House as well, and signed by the president. Obama could veto, and however unpopular EPA regs may be, there’s no way opposition will muster a two-thirds vote to override a veto.
But Murkowski could make a great deal of mischief. No. 3 requires only a bare majority to pass the Senate. Similarly, only a bare majority is required to pass an appropriations bill with a rider. Even if blocked by the House or vetoed by the president, such a public, bipartisan slap at the administration would be highly embarrassing and demoralizing. It would mean at least ten conservative Democrats washing their hands of the administration’s initiative. (Virginia Sen. Jim Webb just came out against EPA regulations yesterday.) It would mean wavering members of Congress forced to take a public stand on a divisive issue.
And remember, this is a measure that top Democrats, up to and including Obama, have been badmouthing for a year. At every turn, they have stressed how inflexible and inefficient EPA regulations would be relative to cap-and-trade legislation. Getting stuck fighting for those heavy-handed, socialistic “command and control” regulations against a bipartisan coalition of “centrist” Senators would put Democrats on terrible political terrain, particularly in the run-up to mid-term elections.
That, ultimately, is Murkowski’s political goal: to hang unpopular regulations as tightly as possible around the necks of Democratic leadership. Democrats have two choices: they can run away from Obama’s administration like puppies scared of their shadows — which appears to be how they’re electing to respond to Brown’s win in Mass. — or they can get serious about winning a PR battle for once. The Clean Air Act is actually incredibly popular, but right now nobody is making the case to the public that it can work on greenhouse gases. The opponents of clean air and clean energy are practically alone on the field. No wonder Murkowski is romping around with such abandon.
UPDATE: Kate Sheppard reports:
We’ll find out tomorrow precisely which strategy Sen. Lisa Murkowski (R-Alaska) plans to use in her mission to bar the Environmental Protection Agency from regulating greenhouse gases. Her press office just announced that the senator will give a floor speech tomorrow in which she’ll indicate whether she plans to tack an amendment blocking EPA regulations onto debt-ceiling legislation, or whether she’ll offer a separate “resolution of disapproval” barring any EPA restrictions on carbon emissions.
UPDATE 2: Ben Geman reports:
Sen. Mary Landrieu (D-La.) told reporters Wednesday that she is working with Sen. Lisa Murkowski (R-Alaska) on Murkowski’s efforts to block EPA from regulating greenhouse gases under the agency’s current Clean Air Act powers.
Murkowski’s spokesman recently said Murkowski’s effort had attracted a Democratic backer — the aide didn’t say who — and that she is reaching out to other Democrats too.
“I am considering that right now,” Landrieu said when asked whether she backed Murkowski’s plan. “I have been working with her on it.”
Landrieu said she is not yet ready to announce anything but believes the Clean Air Act is not meant to be applied to carbon dioxide emissions.
UPDATE 3: E&E reports ($sub) that the number of Senate Dems supporting Murkowski is up to three:
Three moderate Senate Democrats said today that they have discussed measures to limit U.S. EPA climate regulations with Sen. Lisa Murkowski (R-Alaska).
Democratic Sens. Mary Landrieu of Louisiana, Ben Nelson of Nebraska and Jim Webb of Virginia said today that they have discussed congressional efforts to limit the agency’s power to regulate greenhouse gas emissions with Murkowski.