BIOMASS INTEL

The recent election of Scott Brown (R-MA) to fill Ted Kennedy’s vacant seat in the US Senate not only throws a monkey wrench into the ongoing healthcare debate, but also makes the passage of comprehensive cap-and-trade in 2010 a dubious prospect.  With the election giving Republicans increased leverage by breaking the Democrats’ 60-seat Senate supermajority, expect an all-out attack on the EPA’s endangerment ruling, which was issued in late 2009 ahead of Copenhagen.

The Endangerment ruling finds that greenhouse gases threaten public health and the environment.  It also grants EPA the authority to regulate emissions under the Clean Air Act.  Legally, the EPA’s ruling only affects vehicle emissions, but the precedent will likely result in substantial regulation for other source categories as well.  Although the published final rules became effective January 14, 2010, it is subject to judicial review through February 16, 2010.

Most recently, Senator Lisa Murkowski (R-AK) introduced a bipartisan resolution (S.J.RES.26) that would effectively block the EPA from regulating GHGs for a year.  Murkowski contends that the Senate should be given time to debate a legislative cap-and-trade solution:

Our bipartisan resolution deals with an incredibly important question: whether or not members of this body are comfortable with the actions EPA will take under its current interpretation of the Clean Air Act. I’m not comfortable with those actions, and neither are the Senators who have already agreed to add their names to this effort. The Clean Air Act was written by Congress to regulate criteria pollutants, not greenhouse gases, and its implementation remains subject to oversight and guidance from elected representatives. We should continue our work to pass meaningful energy and climate legislation, but in the meantime, we cannot turn a blind eye to the EPA’s efforts to impose back-door climate regulations with no input from Congress.

Murkowski’s contention that the Clean Air Act does not regulate GHGs contradicts the Supreme Court’s holding in Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), in which the Court held that the Clean Air Act gives EPA the authority to regulate tailpipe GHG emissions.  She provides a laundry list of dangers associated with EPA regulation:

• Forces businesses to cut jobs or close their doors for good
• Makes housing less affordable
• Makes consumer goods more expensive
• Severely restricts domestic energy production
• Increases US dependence on foreign suppliers
• Threatens our national security

Pursuant to the provisions of the Congressional Review Act (CRA), Congress may review every new federal regulation issued by the government agencies and, by passage of a joint resolution, overrule a regulation. Upon introduction, a disapproval resolution is referred to the committee of jurisdiction, which in this case will be the Senate Committee on Environment and Public Works.  If the committee does not favorably report the resolution, it may be discharged upon petition by 30 Senators.  Once a disapproval resolution is placed on the Senate calendar, it is then subject to expedited consideration on the Senate floor, and not subject to filibuster.

Resources:

Text of Murkowski’s comments on the Senate floor

Biomass Intel’s EPA Endangerment Rule analysis

Biomass Intel’s “GHGs on the Run: The Regulatory Endgame After Copenhagen” article

Image: Flickr/undergroundbastard