Over the past two years, cap-and-trade advocates used the threat of U.S. EPA climate regulations as a key driver in the push for climate legislation on Capitol Hill. Now, Democratic leaders face the challenge of renewed bipartisan interest in handcuffing EPA before it takes action.
President Obama and many Democrats reveled six weeks ago in the successful defeat of a Senate bid to neuter EPA's authority over emissions. But with the Senate climate bill dead, new momentum is building for legislation that would pre-empt the agency's power under the Clean Air Act to regulate stationary pollution sources.
"The time has come to prevent the EPA from going forward next year with regulations on stationary sources," said Rep. Rick Boucher (D-Va.), a co-sponsor of a bill forcing a two-year timeout on EPA emissions rules. "If Congress doesn't act by this time next year, the EPA will."
Rep. Gene Green (D-Texas) joined Boucher in voting for the House climate bill last year, but he also said pre-emption of EPA authority on emissions should be back on the table.
"I would hope EPA would recognize that this is a legislative function ... no matter what the federal courts said," Green said, referencing the Supreme Court 2007 decision in Massachusetts v. EPA that upheld EPA's power on the issue. "I would hope there is some vehicle we could put up ... to say, if it's not this year, then next Congress we can address carbon."
Senate Majority Leader Harry Reid (D-Nev.) plans to allow a vote this year on a corresponding two-year EPA postponement proposed by Boucher's fellow coal-state Democrat, Sen. Jay Rockefeller of West Virginia. That decision was made to help dissuade senators from backing last month's broader plan to revoke EPA's "endangerment finding" on carbon emissions, according to a Senate Democratic aide (Greenwire, June 10).
The more sweeping EPA pre-emption plan, offered by Sen. Lisa Murkowski (R-Alaska), fell short on a 47-53 vote last month (E&ENews PM, June 10). Murkowski spokesman Robert Dillon said the scaled-down energy package Reid aims to bring to the floor next week would present "a good opportunity" to vote on Rockefeller's two-year delay.
"There is a broad, bipartisan concern about the impact of EPA's actions on the economy," Dillon said, describing a fresh EPA timeout as "an amendment ripe for offering."
Rockefeller's bill has seven Democratic co-sponsors, with most Republicans expected to support it if a floor vote takes place. The House counterpart has 14 co-sponsors signed on. Still, both measures are considered long shots; House Democratic leaders are unlikely to give floor time to their version and Obama indicated that he would have vetoed Murkowski's resolution if it reached his desk. The White House has not commented publicly on the two-year EPA delay.
A two-year EPA delay nearly squeaked through a House Appropriations subcommittee yesterday, however, with two Democrats joining every panel Republican in a 7-7 vote (E&ENews PM, July 22). One of those supportive Democrats, Rep. Allan Mollohan of West Virginia, said the Senate's inability to craft a viable climate bill speaks to the need for a slowdown in EPA emissions regulations.
"It's a reasonable approach to the concerns of those of us who would prefer to see this greenhouse gas issue decided through the legislative process," Mollohan said, describing himself as "disappointed" that pre-emption has not played a greater part in the Senate debate.
The climate bill introduced in May by Sens. John Kerry (D-Mass.) and Joe Lieberman (I-Conn.) would have permanently sidelined EPA from regulating greenhouse gases.
House Energy and Commerce Chairman Henry Waxman (D-Calif.) has not ruled out taking up the two-year delay in his panel. Asked last month if he would consider holding a markup on the bill, Waxman said: "I don't think so, but I don't want to say absolutely not."
Meanwhile, environmentalists are girding for a fight to keep EPA's authority in place.
"It is up to the Obama administration to promptly comply with the Supreme Court by using EPA's authority to reduce global warming pollution," said Daniel Weiss, director of climate strategy at the Center for American Progress Action Fund. "The White House must also launch a vigorous defense of that authority in the face of attacks from big oil, big coal and their congressional allies."
David Moulton, director of climate policy at the Wilderness Society, said his group "will be focused very heavily on defending EPA" against efforts to block climate rules.
"EPA is the backstop and the president is the backstop for EPA," Moulton said. "[Obama's] in a position to veto anything that Congress manages to pass in that area. I would be surprised if these Democratic Congresses in the end took such a drastic measure."
Nathan Willcox, Environment America's federal global warming program director, said he expects opponents of EPA climate rules to increase their efforts to "roll back" the Clean Air Act in the absence of a cap on greenhouse gas emissions.
"Obviously we're still watching the potential EPA rollbacks," Willcox said. "It's not clear where the Rockefeller amendment shakes out in all of this, but especially the less Congress does on energy and climate, the more important it will be that the Clean Air Act can be allowed to do its job and cut global warming pollution from the largest polluters."
Reporters Robin Bravender and Gabriel Nelson contributed.