This story was updated at 10:55 a.m. EDT.
Despite stalled progress in Congress on a cap-and-trade climate bill, supporters of a regime to curb carbon dioxide emissions have taken comfort in the Obama administration's push to regulate greenhouse gases.
But a possible amendment from Sen. Lisa Murkowski (R-Alaska) has the potential to handcuff U.S. EPA from exercising its full regulatory power, a scenario that has sent shockwaves through the environmental community.
The amendment to EPA's fiscal 2010 spending bill would allow the agency to regulate carbon dioxide emissions only from mobile sources and prohibit it from regulating heat-trapping emissions from stationary sources like power plants and industrial facilities. The limits would be in place for one year.
"The [environmental] community is working feverishly to oppose this bad idea," said Joseph Mendelson, global warming policy director at the National Wildlife Federation and a lead author on the original 1999 petition to EPA seeking regulations for greenhouse gases. Among environmentalists, he added, there is "as close to unanimous support as you can get on defeating this amendment."
Yesterday, 32 environmental groups sent a letter urging the Senate to reject Murkowski's draft amendment because it would "ignore worldwide scientific consensus that carbon dioxide is a pollutant that threatens public health and welfare, block Clean Air Act protections, and delay the move to clean, American-made energy."
It remains unclear exactly how Murkowski's amendment would limit EPA's regulatory authority, but experts say it could affect several pending regulations, including a mandatory reporting rule for greenhouse gas emissions and a proposed "tailoring" rule that would limit regulations on greenhouse gas emissions to cover only very large industrial sources.
The amendment would prohibit EPA from finalizing its renewable fuel standard and would prohibit Safe Drinking Water Act regulations for carbon capture and sequestration, according to an EPA official who spoke on background.
"It's not quite clear what the full reach of this would be, but anything where carbon dioxide is sort of considered is going to be impacted," Mendelson said.
Obama officials have already begun to push back against the attempt to take away EPA's authority. "This amendment would have several negative side effects for American industry," said EPA spokeswoman Adora Andy.
The amendment would leave a clear opening for the agency to proceed with its proposal to impose the first-ever greenhouse gas standard on the nation's cars and trucks (Greenwire, Sept. 15).
"The senator has no interest in trampling on that Supreme Court decision as it relates to mobile sources," spokesman Robert Dillon said last week in response to comments that the amendment would instruct EPA to ignore the court's 2007 Massachusetts v. EPA decision that ordered EPA to reconsider whether greenhouse gases are pollutants subject to regulation under the Clean Air Act.
Murkowski's office is working with EPA to ensure that the amendment would be carefully tailored to avoid any unintended consequences, Dillon said. "We're consulting with them, we're working with them to make sure the amendment is targeted just at regulating stationary CO2 sources," he said.
Dillon said Murkowski is also concerned that EPA's "tailoring" rule -- which is expected to limit strict permitting requirements to large sources of carbon dioxide -- will not withstand legal challenge and would ultimately "wreak economic havoc." She is also unhappy with the threat of using EPA regulations to leverage legislative action on climate change, Dillon said.
Prospects for passage
It is far from clear how Murkowski's amendment would fare if it were brought to a vote on the Senate floor.
The senator would likely be able to count on most Republicans, many of whom have vocally criticized the Obama EPA's efforts to move forward on carbon dioxide regulations. She might also be able to bring some moderate Democrats on board, including those representing coal and agricultural states.
"I think most of the moderate Democrats will be taking a hard look at the amendment," said Andrew Wheeler, former Republican staff director for the Environment and Public Works Committee now working for the firm B&D Consulting.
Wheeler said that a group of at least 20 Democrats -- including senators concerned about EPA regulations' effects on agriculture and small business -- would be looking critically at Murkowski's amendment.
Sen. Ben Nelson (D-Neb.) may be among those moderates.
"The alphabet agencies are not the fourth branch of government, and they ought to take judicial notice of what's happening and not happening here in the Senate," Nelson said last week when asked about the prospect of EPA climate regulations.
If it is introduced, the amendment would need to clear several key hurdles before becoming law. Although amendments to appropriations bills typically require 51 votes, the Murkowski amendment could require 60 votes to pass if a senator decides to filibuster. The amendment would then need to make it through the House-Senate conference negotiations and win approval from President Obama.
"The level of success waxes and wanes depending on particular circumstances, the age of an administration and an issue, and the correlation of forces brought to bear," said Eric Ueland, who served as chief of staff to former Senate Majority Leader Bill Frist (R-Tenn.).
Democrats had mixed success using the appropriations process in trying to trump the George W. Bush administration's environmental policies.
In 2001, the House and Senate included riders on the EPA spending bill that ultimately helped pressure Bush into approving a Clinton-era regulation to lower arsenic levels in drinking water (E&E Daily, Aug. 3, 2001).
But in 2003, then-Sen. John Edwards (D-N.C.) lost 46-50 on the Senate floor with an amendment aimed at blocking implementation of EPA regulations overhauling the Clean Air Act's New Source Review program (E&E Daily, Jan. 22, 2003). States and environmentalists later defeated the Bush-era rules in federal court.
"This is a pretty classic tool in Congress' arsenal for attempting to constrain the behavior of the executive," Ueland said.
Climate bill implications
This could be the second time this year the Senate votes to limit a potential negotiating ploy on the Democrats' cap-and-trade bill.
Earlier this year, the Senate adopted, 67-31, an amendment from Sen. Mike Johanns (R-Neb.) to the fiscal 2010 budget resolution that would put major hurdles in the use of reconciliation for the purposes of moving climate legislation (E&E Daily, April 2).
Twenty-six Democrats voted with almost all Senate Republicans in favor of the amendment, effectively ensuring a cap-and-trade bill could not be passed with a simple majority. Senate Environment and Public Works Chairwoman Barbara Boxer (D-Calif.) floated the idea at the beginning of the 111th Congress, and White House climate and energy adviser Carol Browner was urging lawmakers to consider the plan.
Wheeler said he does not expect the amendment to affect the Senate debate over climate legislation one way or another, despite theories that the Obama administration hoped to use the prospect of EPA regulations to spur legislative efforts.
"It really shouldn't impact what's being worked on in the Senate climate bill," he said, "although there are certainly some people who have proposed ... to let EPA scare everybody into acting legislatively."
It is also unclear if the amendment is a true "test vote" for a floor climate debate, as some members such as Sen. Jay Rockefeller (D-W.Va.) who have been active on the legislative front are not fans of the EPA regulatory effort.
Not acting on the climate bill "just cedes completely to the EPA newly empowered by the Supreme Court under very strict terms to just tear at carbon related things," Rockefeller said earlier this month. "All of that is talking about the end of coal and that is not where I want to be at all for West Virginia" (E&E Daily, Sept. 14).
David Bookbinder, Sierra Club's chief climate counsel, said it was unlikely that the amendment would make it through Congress.
"I don't think it's going to be successful for a couple of reasons," Bookbinder said. "First, I don't see Congress undercutting the president on the verge of him going to the U.N. and talking about climate and on the verge of the G-20 climate meeting."
"The second point is -- I don't think Congress is going to take away EPA authority before Congress can figure out what it's going to do," he added.
Bookbinder and other environmentalists see EPA's regulatory authority as a critical backstop should Congress fail to come up with a comprehensive measure to deal with climate change. The House-passed energy and climate bill limits EPA's authority to regulate stationary sources, a tactic that may also be adopted in final legislation.
"We've all wanted a legislative solution for years," he said. "But if Congress can't get that done, something has to be done."
If the Murkowski or a similar amendment passes, Democrats would have the opportunity to remove it in conference negotiations with the House.
Another possibility is to simply shelve the spending bill until later this year. Congressional leaders already plan to pass a continuing resolution to fund the government until Oct. 30, and some have talked about a "minibus" to deal with spending bills they are unable to pass on their own (see related story). A delay could buy Democrats time needed to gather votes on the climate bill, regardless of the EPA amendment.
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