The costly, acrimonious elections that ended Tuesday night didn't change much in Washington, D.C., and most observers say that chances for comprehensive carbon legislation appear to be as dim in the coming Congress as they were in the one about to end.
But the election did transform President Obama into a man who will not run for re-election again, perhaps freeing U.S. EPA to move regulations forward with gusto.
Environmentalists certainly hope that's the case. At a press conference yesterday celebrating the victories of the president and many of the other candidates that received their backing, leaders of several prominent environmental groups said they expected direction on climate change to come from the White House and EPA in the near future, not from Congress.
"Over the next four years, there are very specific things that we're calling on the president to do," said Michael Brune, executive director of the Sierra Club Action Fund. "Number one: let the EPA finish its job."
EPA must finalize the greenhouse gas emissions rules for utilities and refineries under the terms of a 2010 settlement agreement with environmentalists, he said. The original terms of the settlement required the agency to finalize all of those rules by the end of this year, but it has exceeded its deadlines and has proposed only a rule for new power plants.
Environmentalists say EPA has needed additional time because of the complexity of its task, but others have suggested that the administration held off releasing the rules until after the election because they would have been a political target.
The activists yesterday said they held out little hope that Congress would contribute much on carbon policy in the next few years.
"Ultimately, we need a congressional strategy, but it's not our top priority for right now," said Margie Alt, executive director of Environment America.
Still, the greens said their main strategy in this election was shoring up pro-environment candidates for the Senate. The aim wasn't to pass pro-environment legislation, said League of Conservation Voters President Gene Karpinski, but to ensure that the numerous House bills to undo EPA rules did not get past the upper chamber.
"We've seen the most anti-environmental House in history. The Senate has been the firewall to stop basically all those attacks on the Clean Air Act, the Clean Water Act, the science of climate change," he said. "They've all been stopped in the Senate."
Brune added that environmentalists had not permanently given up hope that some portion of the House majority party would move their way on climate change.
"At some point, there will be a break-away element in the Republican Party who will deal with this," he said. But that wouldn't lead to legislation in the short term, he said.
'Pent-up environmental energy'
Environmentalists are not the only ones looking for EPA to bear down on climate change regulations now that the election is in the rearview mirror.
"There's a lot of pent-up environmental energy, call it caged up, if you will, that is going to get released, because there will be lawsuits if it isn't," said Kevin Book, managing director at ClearView Energy Partners, in an E&ETV interview yesterday.
"The regulatory agenda will be how energy policy moves until at least the midterm elections," he added, saying that the rules EPA writes are likely to be "left of center."
Book said in a subsequent interview that energy legislation is unlikely in the new Congress, except on discrete issues like changes to the renewable fuel standard and changes to the way the Treasury Department administers financing for renewable energy.
Some in Washington have held out hope that Congress might pass a carbon tax in the near future as part of a larger deal on the budget or tax reform.
Norman Ornstein, a congressional expert with the American Enterprise Institute, noted yesterday in an interview that some of his colleagues are eyeing that option. A budget bill "is more likely to just simply focus on the things we did the last time we had tax reform," he said, such as changes to the corporate and income tax code. "But it's possible that it will open up this process to something more bold," he said.
But Book expressed skepticism.
"The partisan nature of the Congress right now and the prospect of a 2014 opportunity in the Senate is that you probably don't get a deal on that in the next two years anyway," he said. There would be a better chance of passing a landmark carbon-related law after the midterm election, he said.
But Ornstein said the Senate might not vote in lockstep in the next Congress as it did in the current one. As evidence, he pointed to a bipartisan group of senators working to find a way to resolve the so-called fiscal cliff issue.
"You've got a lot of Republicans that I think are tired of voting for every filibuster and voting 'no' on everything," he said. "That's not why they're there."
Meanwhile, Senate Majority Leader Harry Reid (D-Nev.) said yesterday that the chamber could consider climate change legislation next session, adding that Superstorm Sandy helped make a case for action (E&ENews PM, Nov. 7).
And former Rep. Bob Inglis (R-S.C.), said that even the House might be more open to carbon policy after this election. Inglis, who has been working to drum up support among conservatives for a deficit-neutral carbon tax, said the election and Superstorm Sandy had prompted soul-searching within his own party.
"Conservatives win when we deliver solutions. But we lose when we dispute the very existence of challenges," he said. He called the "Frankenstorm" that hit the Atlantic Seaboard last week "the exclamation point at the end of a sentence about droughts and wildfires and heat waves and arctic ice melts."
Experience, he said, is convincing Americans that climate change is real. They will turn away from a party that does not offer solutions to the problem.
Industry as an instigator?
Industry may also be an instigator, though it is hard to predict what might prompt the diverse power sector to coalesce around a call for legislation.
Many utility advocates opposed EPA's proposed new power plants rule, which bans the construction of new coal-fired plants that lack carbon capture and storage capacities. The coal-fired generation industry last year backed House-passed legislation that would have banned EPA from promulgating the rule, but none of those efforts passed the Senate.
Industry has not attempted to seek a compromise that would swap EPA rules for something else, like a carbon tax or alternative regulation. Any such bill would have to attract substantial Democratic support to clear the Senate.
Linda Stuntz, an energy attorney who advised former GOP presidential nominee Mitt Romney, said a regulatory swap of that kind would be too complicated to pass but enough Senate Democrats might vote to roll back a greenhouse gas rule that a large segment of the industry opposed as economically damaging.
"We'll have to see if, in fact, EPA goes forward with regulating existing sources, and what type of regulation they propose," she said. "To me, there are some real questions around what they can do."
Anything EPA proposes for existing plants is likely to be a cause of litigation by industry, she added.
"I think there are a lot of people waiting to pounce on whatever they propose," she said. "It's going to be an epic battle, and I don't think it's going to get done anytime soon, in my view."
Kyle Danish, an attorney at Van Ness Feldman who works on Clean Air Act cases, said he expected EPA to begin work on existing source standards, though they may not be released immediately.
"Some of them are going to take some time to develop," he said.
Some within the policy community have begun floating ideas on how states could satisfy an existing source standard by other means besides requiring the plants to apply prescribed emissions controls. These might include new renewable energy and efficiency programs and requirements, he said.
"I expect that EPA will at least consider approaches in which they allow states a good bit of flexibility in determining how they carry out those standards," Danish said.
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