7 years later, failed Waxman-Markey bill still makes waves

By Amanda Reilly, Kevin Bogardus | 06/27/2016 07:00 AM EDT

It’s been seven years since the House passed major legislation to create a cap-and-trade system for heat-trapping greenhouse gas emissions, and though that legislative attempt ultimately failed, the bill’s sponsors still say it sowed the seeds for other climate change efforts.

It’s been seven years since the House passed major legislation to create a cap-and-trade system for heat-trapping greenhouse gas emissions, and though that legislative attempt ultimately failed, the bill’s sponsors still say it sowed the seeds for other climate change efforts.

As is well-known, the Waxman-Markey bill was not taken up by the full Senate and never became law. But looking back over the last seven years, the bill’s sponsors and their former congressional aides reminisced with E&E Daily in interviews that the unsuccessful fight was worthwhile and that it has had important repercussions.

"It is always worthwhile to fight for what you believe in," former Democratic Rep. Henry Waxman of California said in his office in Washington, D.C., "and if you don’t succeed at first, you keep trying."


Waxman retired at the end of the 113th Congress, and early last year he joined his son’s public affairs and government relations firm, Waxman Strategies. The bill’s other sponsor, Democratic Sen. Ed Markey, has been the junior senator from Massachusetts since 2013.

The two former House lawmakers introduced their bill, formally known as the "American Clean Energy and Security Act," on May 15, 2009. The 1,400-page bill would have established emissions caps through 2050 for several greenhouse gases, including carbon dioxide, and instituted a system for trading emissions allowances.

Waxman-Markey squeaked by the House seven years ago yesterday on June 26, 2009, by a vote of 219-212.

Phil Barnett, who was the Democratic staff director at the House Energy and Commerce Committee under Waxman at the time, said working on the bill was "demanding" and "challenging."

"We worked intensively on it for six months … seven days a week, long hours. The bill was a top priority for Chairman Waxman," said Barnett, now a consultant, adding, "The entire staff poured their hearts and souls into the effort because they thought it would do something to solve the climate problem as well as create economic opportunities and keep costs low."

Looking back, Markey pointed to work on the health care law, another priority for President Obama, for stymying the cap-and-trade bill’s momentum in the Senate.

"We finished Waxman-Markey in the last week of June of 2009. So we had finished our work," Markey said. "We were ready to go. And the politics of it then got much more complicated than anyone thought they would have."

The political dynamics around health care reform became complex with the death of Massachusetts Democratic Sen. Ted Kennedy in August 2009. When Republican Scott Brown won Kennedy’s seat in an upset victory in a special election in January 2010, the politics of passing major legislation became more difficult because Brown gave Republicans a 41st seat in the Senate, thereby robbing Democrats of a filibuster-proof majority.

Then-Senate Majority Leader Harry Reid (D-Nev.) never brought the climate legislation, which was championed in the upper chamber by then-Sens. John Kerry of Massachusetts and Joe Lieberman of Connecticut, to a vote on the floor. Many people close to the legislation have since blamed a number of factors, including Republican opposition and concessions to special interests.

"It was a disappointment that we couldn’t get a bill all the way through, but we highlighted the issue," Waxman said. "We gave it our best effort. We tried to accomplish that goal. But I know from my own history as a member of Congress, I have to work sometimes decades before some of the proposals I made eventually became law."

He cited, for example, the 15 years it took for Congress to pass the 2009 Tobacco Control Act, which gave the Food and Drug Administration the authority to regulate tobacco products.

Genesis of executive branch efforts

The collapse of the Waxman-Markey bill in the Senate in 2010 spurred the Obama administration to aggressively use the executive branch to issue regulations aimed at reducing greenhouse gas emissions. U.S. EPA issued its final Clean Power Plan for reducing carbon dioxide emissions from power plants last August and helped negotiate the international climate change deal in Paris last December.

In the first term, "the administration really focused on trying to get a big legislative fix to the climate change problem. As you know, that effort fell short," John Podesta, who was a top adviser to Obama and helped drive White House climate policy from 2014 to 2015, said at a recent conference in California. "In the second term, there was more focus on organizing and coordinating the agencies and the White House offices on both the domestic and international side of the equation."

Podesta, who is now campaign chairman for Democratic presidential nominee Hillary Clinton, said that, if elected, the former secretary of State would likely focus on executive actions instead of attempting to pass a "grand climate fix" through Congress, even if the Senate flips to Democratic control.

Obama’s experience was "illustrative," Podesta said.

"A successful climate agenda requires a senior, serious point person in the White House," he said, "who can drive the agencies to do all they can across the whole suite of federal authorities."

But for the Obama administration, starting with a grand climate fix was "absolutely the right thing to do," Waxman said.

And Markey credited the legislation for setting the stage for the Obama administration’s second-term actions by helping to create necessary alliances.

"Much of what the president has done since then, and even if you look at the Clean Power Plan, it’s based largely on what was inside of the Waxman-Markey bill that we passed," Markey said. "So we had worked out the partnerships, the coalitions, that were still there when the president decided to develop the Clean Power Plan. So I think it was actually a very helpful political process to have gone through."

Michael Goo, another former top congressional aide who worked on the bill, agreed with the Massachusetts senator, saying, "Waxman-Markey is still the yardstick by which to measure climate programs."

"It was economywide, it set reduction pathways based on what the science was telling us, and it showed us how, by working together with industry, we could craft an effective climate program consistent with a growing economy," said Goo, now with AJW Inc. "And I think, sooner or later, we will return to something like it. "

Clinton vs. Trump

Markey called a potential Hillary Clinton administration paramount to the United States "continuing to be the world leader" on climate change.

Obama promised the globe in the time before the Paris climate negotiations that the United States would reduce its greenhouse gas emissions between 26 and 28 percent from 2005 levels by 2025. In Paris last December, more than 190 nations agreed to limit global warming to 2 degrees Celsius and to pursue efforts to limit warming to 1.5 C. The agreement also commits countries to periodically revisiting their pledged domestic emissions reductions.

Both Waxman and Markey are optimistic that Clinton will become the next president of the United States.

"I think she would be wise to follow the example of President Obama in trying to put this as a high priority to work with the rest of the world to reduce the greenhouse gases that cause climate change," Waxman said. "I believe she’s committed to it."

Markey is harshly critical of Republican presidential candidate Donald Trump’s inconsistent views on climate change. In 2009, before international climate talks in Copenhagen, Denmark, Trump signed an open letter calling global warming a problem; he’s since claimed that it is a hoax perpetuated by the Chinese to hurt American business.

Trump has more recently vowed to undo the Paris climate pledge, which Obama officials are hopeful will go into force before the beginning of the next administration. Once entered into force, which happens when at least 55 countries representing at least 55 percent of global greenhouse gas emissions formally adopt it, the withdrawal process for a nation takes four years.

Markey compared Trump’s claim that climate change is a hoax to the businessman’s former claim that Obama was born in Kenya and not the United States.

If Trump is elected, Markey said, "every single promise we made to the rest of the world [on climate change] will be broken."

A campaign issue?

Markey also predicted that climate change would become a more hotly debated issue this presidential election compared with the 2008 race, when both parties’ candidates expressed support for addressing greenhouse gas emissions, and the 2012 race between Obama and former Massachusetts Gov. Mitt Romney (R) when climate change was largely a nonissue.

"It’s going to become a larger and larger issue that goes right to [Trump’s] credibility as a leader in our country," Markey said. "So the more he says it, the better for us because suburban swing Republicans and independent voters believe the science of climate change."

Others have said the same.

"The Clinton campaign is going to push these issues, and their allies in the clean energy business sector are going to push these issues forcefully, especially in swing states," said Paul Bledsoe, a former climate adviser for the Bill Clinton administration and an energy consultant. "I think they see it as a profound political vulnerability for Trump and the Republicans generally."

Still, a recent Gallup poll found that, of 17 policy issues, the issue gap for climate change is greatest among voters. The poll found that 72 percent of Democrats say that the issue of climate change is "extremely" or "very" important in how they vote for a presidential candidate. Just 25 percent of Republicans say that the issue is important.

Waxman lamented the hyper-partisan nature of Congress and that "compromise" has become a "dirty word" in D.C. He said he’s surprised that supporters of cap and trade were unable to harness the business community in attracting more Republican support for the legislation.

"It has been a difficult time that we’re going through in getting a more reasonable way to compromise," he said, "because so many of the Republicans that have been elected to office in the last four, six years think that their role is to say no to anything that the Democratic president, Democrats want."

Greg Dotson, who was the chief environmental staffer on the Senate Environment and Public Works Committee at the time of Waxman-Markey, said that Republican support did not materialize despite support from companies in the oil and chemical sector.

"The assumption and hope was that if you got businesses on, you got Republicans on," said Dotson, who is now the vice president for energy policy at the Center for American Progress. "So we did a lot of work to address business concerns, and we got a lot of business support, and that did not translate to broad Republican support.

"For an incoming president," Dotson added, "that’s a pretty scary precedent."

At a recent hearing in the Environment and Public Works Committee, Markey said it was ironic that coal-industry allies who are complaining about EPA greenhouse gas regulations’ impact on jobs didn’t support the cap-and-trade legislation.

He complained that the coal industry rejected an offer of billions of dollars for carbon capture and storage technology via the Waxman-Markey bill. Markey argued that the bill attempted to help coal companies stay alive in a way that works "for all the interests."

"We were trying to give them a bridge to the future," he said. "Do you think they wish they could go back to 2009 and grab that money?"

Waxman said that he was hopeful that the dynamic would change in Congress to allow for more collaboration between the parties. He predicted a disaster for Republicans at the polls in November.

"I think it’s going to change because I think they’re going to go down the tubes in this next election, and that’s going to be a lesson to them," Waxman said.

He added: "But I don’t know. I’m giving you my wishful thinking."