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

Despite Multipronged Attacks, Endangerment Finding Appears Safe for Now

Share this article

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.

Still, there is the chance that Murkowski’s move could have far-reaching political effects.

The use of the Congressional Review Act sidesteps much of the usual legislative process, meaning that a general vote on the resolution will occur within 60 days of its introduction.

“Senator Murkowski will be able to get every member of Congress on record as to whether they approve or disapprove the EPA’s endangerment finding, and that is not unimportant politically,” Coglianese explained.

“Republicans, to the extent they want to make it a campaign issue in November, can now claim that Democrats support economically dangerous — in the Republicans’ view — moves by federal bureaucrats.”

At the hearing today, Jackson decried the move for other symbolic reasons.

“The Congressional Review Act resolution essentially asks senators to invalidate EPA’s finding that greenhouse gases endanger public health,” Jackson said. “I think that simple statement is contrary to multiple lines of scientific inquiry. For this country, for the U.S. Senate, to take the position in 2010 would indeed be an enormous step backward for science and decades of scientific inquiry.”

Delaying Tactics

Sen. Jay Rockefeller, a Democrat from the heart of West Virginia coal mining country, is trying a different tactic to block the EPA, one that could have greater appeal.

He has promised to introduce legislation this week that stops short of stripping the EPA’s authority to regulate and instead would prevent any EPA regulations from taking effect for two years. The few Democrats in Congress who do support blocking the EPA’s authority, like Rockefeller, come from energy- or agriculture-rich states.

Based on Jackson’s testimony at today’s budget hearing and statements made in recent weeks, Coglianese points out that Rockefeller’s idea of delaying action “may already have worked.”

Jackson said in a letter last week and again at the hearing today that EPA would only begin to regulate large stationary sources of emissions — meaning, any source that emits more than 100,000 tons of CO2 per year, which could include power plants, refineries and other large facilities — in 2011. She said the agency would phase in smaller sources, down to possibly 25,000 tons per year, over the following five years.

Coglianese suggested that President Obama and Jackson were hoping to push Congress to pass climate legislation with the threat of EPA regulation. “And if Congress doesn’t adopt climate change legislation, we will have this relatively onerous regulatory apparatus that was not intended at all to deal with climate change taking effect,” he said.

“Putting a delay on that pushes back the pressure on Congress to do anything right now,” he explained.

In the House, Rep. Earl Pomeroy (D-N.D.), has introduced another bill that would strip EPA’s authority to regulate greenhouse gases entirely. In testimony before the House Budget committee, Pomeroy argued that “The current Clean Air Act was not developed for greenhouse gas emissions, and it does not work to try and shoehorn greenhouse gas emissions into this statute.”

Both Rockefeller’s and Pomeroy’s bills, though, face the same problem of a presidential veto, with little hope of achieving the two-thirds majority required to override it.

States and Industry Pile On

Outside of Capitol Hill, industry groups have mounted their own attempts to fight the EPA endangerment finding. In February, 16 groups including the Ohio Coal Association, the American Petroleum Institute, the Corn Refiners Association asked the U.S. Circuit Court of Appeals to review the finding that greenhouse gases endanger public health. The EPA, though, expressed confidence that the court challenge will be withstood.

State legislatures are also getting in on the action. Utah and Alabama have already adopted resolutions seeking to remove the EPA’s regulatory authority, and about a dozen other states might shortly follow suit. Many of them cite potential economic hardships under EPA regulation while at the same time calling into question long-established climate science.

Jackson addressed that economic argument in the budget hearing, saying there is “opportunity for tremendous jobs in dealing with climate pollution. In dealing with the negative impacts you have a tremendous opportunity.” She noted her agency’s budget proposal includes $25 million for state grants focused on developing technical capacity to address greenhouse gas emissions.

Although the attacks keep coming from just about every imaginable angle, none appear to have particularly strong chances of keeping greenhouse gas regulations away for long. As Coglianese pointed out, however, they clearly have some political impact.

“These actions that we’re seeing are not surprising,” he said. “What would be surprising is if at the end of the day they garner enough support to be enacted into law.”


UPDATE (March 4): Sen. Jay Rockefeller (D-W.Va.) today introduced his legislation, which aims to suspend EPA regulation of greenhouse gases from stationary sources for two years. Fellow West Virginia Democrat, Rep. Nick Rahall is introducing a companion bill in the House. In a twist, Sen. Lisa Murkowski (R-Alaska), who has been pushing for a complete override of EPA authority to regulate greenhouse gases, threw her support to the Rockefeller bill. The bill notably applies only to stationary sources — those mostly likely to be using coal — and would not effect regulation of greenhouse gases from vehicles.


See also:

GOP Protest Builds Against EPA Regulating Greenhouse Gases

US Plans for Greenhouse Gas Regulations in 2011, Hopes for CCS

Utah House Passes Resolution Implying Climate Change Conspiracy