Offering an opening line of attack in this year's House global warming debate, top Republican leaders called yesterday for Judiciary Committee hearings into whether cap-and-trade legislation must originate in the House because it would raise government revenue like a tax.
House Minority Whip Eric Cantor (R-Va.) and four committee ranking members argued in a letter to Judiciary Chairman John Conyers (D-Mich.) that cap-and-trade legislation should be dubbed "cap and tax" because the program's "ultimate effect will be to establish a federal tax on carbon emissions."
The GOP lawmakers suggest Conyers launch a review of the legal issues surrounding the popular climate legislation or the measure could be invalidated in court on constitutional grounds.
"Avoiding the word 'tax' has obvious political advantages for proponents of cap and tax legislation," they wrote. "But legally, the bill's function, not it's title, will dictate its treatment. If Congress passes cap and tax legislation, and courts determine that the legislation is a revenue bill under the U.S. Constitution, the courts could overturn the bill if Congress has not handled it appropriately."
GOP ranking members signing the letter include Reps. Jim Sensenbrenner (Wis.) of the Select Committee on Energy Independence and Global Warming, Lamar Smith (Texas) of the Judiciary Committee, Dave Camp (Mich.) of the Ways and Means Committee and Paul Ryan (Wis.) of the Budget Committee.
A Sensenbrenner spokesman insisted yesterday that the lawmakers' letter does not make the assertion that a cap-and-trade bill would raise revenue. It only seeks an inquiry into whether the bill would raise revenue -- and therefore must start in the House. "We think this should be explored and that really the only committee to do that is the Judiciary Committee," the spokesman said. "They're the only ones to hold hearings to determine constitutionality."
Spokespersons for Conyers and Ways and Means Chairman Charles Rangel (D-N.Y.) did not return requests for comment.
But House Energy and Environment Subcommittee Chairman Ed Markey (D-Mass.) dismissed the Republicans' letter as a political ploy. Markey, who also chairs the Select Committee, said the issues raised in the GOP letter were decided last year upon the introduction of earlier versions of cap-and-trade legislation.
"The House's nonpartisan and unbiased judge of whether a bill imposes a tax is the House Parliamentarian and they have already ruled that it is not," Markey said in an e-mailed statement to E&E Daily. "This effort to re-litigate the jurisdictional question in a political setting is misguided."
Turf battles ahead?
The Republicans' concerns about the House being the starting point to the climate debate may not amount to much if Democratic leaders have their way.
Pelosi has pledged a floor vote this year on cap-and-trade legislation, and Markey and House Energy and Commerce Chairman Henry Waxman (D-Calif.) say they plan to mark up a comprehensive climate and energy package by Memorial Day. In the Senate, the only pledge so far has come from Environment and Public Works Chairwoman Barbara Boxer (D-Calif.), who has said she will press for a vote on climate legislation this year.
What is more likely is a jurisdictional dispute among Democratic leaders from other powerful committees who are seeking a piece of the debate.
"I think the Ways and Means Committee may feel pretty strongly about a number of the tax provisions," House Democratic Caucus Chairman John Larson of Connecticut, an advocate for carbon tax legislation, said in an interview Tuesday. "But I think even the Ways and Means Committee can move quickly on it also."
Indeed, the Ways and Means Committee is expected to see some action. Last year, for example, Rep. Lloyd Doggett (D-Texas) introduced cap-and-trade legislation that received a primary referral there because his bill gave the Treasury Department primary authority instead of U.S. EPA for the implementation of key components of the new climate program. Doggett's bill also was referred to nine other committees.
Markey's own climate bill also received referrals to 10 House committees, including a primary referral to Energy and Commerce, as well as hearings in Ways and Means, and Transportation and Infrastructure. And Waxman produced a climate bill in March 2007 that was sent both to the Energy and Commerce and the House Foreign Affairs committees.
Mark Menezes, an industry attorney and former Republican aide to the Energy and Commerce Committee, said the Republicans have raised a legitimate set of issues -- jurisdictional and constitutional -- with their letter. "These are the types of questions that committee counsel have to deal with," he said.
But an environmentalist tracking the climate debate did not see the letter the same way, especially considering its origins in Sensenbrenner's office. "Now that Congress appears on the cusp of moving forward on climate legislation, it's not surprising that a longtime critic of action on the issue is resorting to procedural claims and sly innuendo to attack it," said Tony Kreindler of the Environmental Defense Fund.
Click here for the House Republicans' letter.