EPA’s Authority to Regulate Greenhouse Gases Comes Under Fire From All Angles

Environmental Protection Agency Administrator Lisa Jackson faced questions today from senators about her agency’s fiscal year 2011 budget request. Although representing only a small portion of the $10 billion total request, the ongoing battles regarding the EPA’s aim to regulate emissions of greenhouse gases from some sources took center stage.

The agency seems to be under attack from all angles when it comes to greenhouse gas regulation — House members seeking to overturn its authority to regulate greenhouse gases, senators calling for delays on regulation, states and industry groups attempting to sue. These maneuvers are drawing national attention and dividing Democrats in Congress. However, the chances of permanently preventing the EPA from regulating greenhouse gases appear slim.

“It has been three years since the Supreme Court ruled in Massachusetts v. EPA that EPA has a legal responsibility under the Clean Air Act to determine whether greenhouse gases endanger public health and welfare,” Sen. Diane Feinstein (D-Calif.) said at the hearing.

She noted that some of her colleagues on Capitol Hill are now trying to subvert the authority of that court finding. “I think this is the wrong approach,” she said. “Legislation overturning the endangerment finding countermands the Supreme Court’s landmark decision.” As directed by that court decision, the EPA found last year that greenhouse gases do endanger public health, making them eligible for regulation under the Clean Air Act.

Sen. Lisa Murkowski (R-Alaska) joined the hearing late and repeated many of the same assertions she has made in recent months that greenhouse gas regulation would be better done by Congress than by an appointed agency.

Along with a number of co-sponsors, she introduced a resolution in January that invokes the Congressional Review Act in an attempt to block the EPA’s authority. Murkowski has the support of numerous oil and gas groups, as well as agricultural groups who fear the economic impact of EPA regulation.

Two House Democrats made a parallel move last week, with Collin Peterson (D-Minn.) and Ike Skelton (D-Mo.) sponsoring an identical resolution along with Jo Ann Emerson (R-Mo.).

Symbolism of the CRA

The attempt to use the Congressional Review Act, although the most publicized, is among the least likely avenues to succeed in removing the EPA’s authority.

Even with apparent bipartisan support, it is unlikely the measures would receive majority votes in both houses of Congress; even if they did, the likelihood of an Obama signature approving such a move is basically zero.

“Any of these methods are going to depend on support by Democrats, and enough support to override a presidential veto,” said Cary Coglianese, a professor of law and political science at the University of Pennsylvania and director of the Penn Program on Regulation.

“So, I think they are largely politically symbolic, and, of course, in politics, symbols matter.”

Invoking the Congressional Review Act has only succeeded in overturning an agency rule once before. This involved the Occupational Safety and Health Administration’s ergonomics rule that would have required millions of employers to address concerns relating to musculoskeletal problems with workers. Congress overturned the rule largely because it was issued near the end of President Clinton’s second term, and a sympathetic Republican Congress soon had a similarly sympathetic Republican in the White House. That is no longer the case.