Over and over again, in e-mails and comments and blog posts, I hear some enviros saying that it doesn’t matter if Waxman-Markey fails, since EPA can use the endangerment finding to regulate CO2 as well or better.  That dangerously mistaken view would appear to be creating a dangerous apathy among many progressives and environmentalists, as I’ll discuss shortly.

Certainly, the finding was a major environmental achievement by this administration (see “EPA finds carbon pollution a serious danger to Americans’ health and welfare requiring regulation“).  But it can’t take the place of Congressional action for three key reasons:

  1. It would be difficult for the EPA to enact a CO2 cap and trade without congressional cooperation,” as John Podesta, former Clinton Administration Chief of Staff and now CEO of CAP, recently said.  The endangerment finding is far better suited to addressing new sources than existing sources.
  2. A subsequent president could trivially stop or endlessly delay whatever actions Obama was able to start with the EPA.
  3. If Congress rejects the binding targets of W-M, then we have no basis for negotiating with other countries as part of the UN Framework Convention on Climate Change process.  Indeed, we would have no basis for a deal with China.  A promise by Obama that he would try to use the limited authority EPA has to commit to a modest cut in CO2 by 2020 — and deep cuts in 2030 and 2050 — would be seen as meaningless.

Let me expand on the first point.

The origin of the endangerment finding was an April 1998 memo that EPA general counsel Jonathan Cannon wrote to then administrator Carol Browner in response to House Republicans.  It is titled, “EPA’s Authority To Regulate Pollutants Emitted by Electric Power Generation Sources.”  I highly recommend reading the entire memo since it’s not long, and it would certainly be the basis of any lawsuit brought against the EPA if it tried to overstep the bounds of what the Clean Air Act allows.

As Greenwire (subs. req’d) explained in a long 2008 story, it was this memo that served as the basis for the original petition by The International Center for Technology Assessment (ICTA) and other groups to regulate greenhouse gases from new motor vehicles, which is what ultimately led to the successful Supreme Court decision that found CO2 was a pollutant that could be regulated under the CAA.

Here is the final paragraph of that memo:

With the exception of SO2 provisions focused on acid rain, the authorities potentially available for controlling these pollutants [including CO2] from electric power generating sources do not easily lend themselves to establish market-based national or regional cap-and-trade programs, which the administration favors for addressing these kinds of pollution problems. Under certain limited circumstances, where states fail to carry out their responsibilities under Title I of the Act, EPA has authority to take certain actions, which might include establishing a cap-and-trade program.  However, such authority depends on the actions or inaction of the states.

The endangerment finding is very poorly suited to issuing market-based regulations of existing sources. It is quite safe to say that if the EPA tried to impose a shrinking cap on CO2 using the endangerment finding after Congress had explicitly rejected that, then the whole mess would end up in the courts for many, many years.  Indeed, individual states that didn’t want regulation could by themselves slow down the process immensely even before the court showed up.  And any future GOP Administration could easily issue a finding that killed or stopped the whole process.

I do think the endangerment finding represents an important motivator for Congressional action, since industry dislikes uncertainty and lawsuits.  The administration has dealt with new vehicles for now (see “Obama to raise new car fuel efficiency standard to 39 mpg by 2016 – The biggest step the U.S. government has ever taken to cut CO2.“).  But if W-M dies, the finding does give the EPA authority it needs to block the vast majority of new coal plants until carbon capture and storage becomes practical and affordable — which is probably a decade away and possibly two (see “Is coal with carbon capture and storage a core climate solution?“).

I think it would be valuable for EPA to keep this authority under climate legislation, but it’s not one of the top five things I would change about W-M if I could.  Why?  Because I don’t think the Obama administration was going to stop every new coal plant anyway.  And I do think W-M would effectively stop as many new dirty coal plants as the endangerment finding.  Indeed, the economic crash coupled with the $90 billion for efficiency and renewables in the stimulus has probably finished off most of the rest of the planned coal plants (see “EIA projects wind at 5% of U.S. electricity in 2012, all renewables at 14%, thanks to Obama stimulus!“).

There just isn’t a lot of room for new coal in a country where electricity demand has slowed sharply and new renewables (plus cheap gas) provide the most attractive options.  Passage of Waxman-Markey would certainly finish off the vast majority of the rest of those plants.

Waxman-Markey would finish the massive transition to a low-carbon, clean energy economy that was begun in the stimulus.  It can serve as the basis of international negotiations that can set the entire world on such a transition.  And it can be strengthened over time.

Many legitimate critiques of W-M can be made, but it is simply irresponsible to assert that doing nothing is an option with superior environmental outcomes.  Quite the reverse.  W-M would sharply reduce CO2 emissions from coal plants within a decade and it would lead to a virtually carbon-free energy system within four decades.   And from an international perspective, failure of W-M all but eliminates what small chance the world has to avert catastrophic warming.