Will Senate Showdown on Clean Air Act Slow Down EPA's Momentum?

Debate and vote on Thursday a nuanced political litmus test

WASHINGTON—Senators are likely in for a doozy of a debate Thursday before they vote on Lisa Murkowski's resolution to derail the EPA's authority to regulate heat-trapping gases under the 40-year-old Clean Air Act.

And while it is tempting to dismiss the back and forth discussion as yet another example of mere garden variety political theatrics, don't. Better to pay attention to the nuances of the exchange.

That's advice from Seth Kaplan, an attorney with the Boston-based Conservation Law Foundation who has specialized in climate issues for two decades.

With climate bills already on the floor, senators are setting the stage for a debate about global warming legislation, Kaplan told Solve Climate in a Monday interview. And that's a legitimate pursuit, he continued. Where senators drift out of bounds is when they politicize the scientific proof that man-made emissions are warming the Earth.

"It's not inherently bad to politicize things," he explained. "Politics is how we resolve issues and govern ourselves in a democracy without hitting each other, which is hardly a bad thing."

"But we need to make a distinction between a political debate about policy and a political debate about science. When the science is politicized and we end up having a congressional vote to disapprove of what is already a scientific conclusion—that is absurd."

Murkowski's bipartisan legislation has 40 co-sponsors, including three Democrats. The Alaska Republican deployed what's known as the Congressional Review Act to negotiate a debate date with Senate Majority Leader Harry Reid, D-Nev.

None other than Environmental Protection Agency Administrator Lisa Jackson has spoken out against the resolution. Linking it to the BP oil spill in the Gulf of Mexico, she labeled it a big step backward that would keep America addicted to oil in an 11-paragraph opinion piece posted Monday on the Huffington Post.

"Senator Lisa Murkowski, with strong support from big oil companies and their lobbyists, has proposed a resolution that would drastically weaken our nation's historic effort to increase fuel savings, save consumers money and cut oil consumption from American cars and trucks," Jackson wrote.

Leaders of environmental advocacy organizations doubt the ranking Republican of the Senate Energy and Natural Resources Committee can muster the 51 votes she needs to push the measure over to the House of Representatives, where its chances of passage are reckoned to be even slimmer. And President Obama would most likely veto any such legislation reaching his desk.

However, those same advocates comprehend why Murkowski is trying to block EPA's endangerment finding for greenhouse gases at this juncture -- a visibly muscular, nimble and able EPA, with full backing of the Obama administration, has gained much traction with its "tailoring" rule that is allowing it to apply the Clean Air Act to greenhouse gas emissions with common sense and caution. Murkowski is out to lay a speed bump to slow the agency's momentum.

"It's ridiculous to claim that EPA is a rogue agency out to regulate the whole country," Frank O'Donnell, the president of D.C.-based Clean Air Watch said in a Monday interview. "The agency has proceeded cautiously and has carefully tailored its laws thus far"

"These regulations are not a threat to small businesses at all," he continued, adding that sources such as restaurants, farms and schools would be exempt. "The EPA bent over backward trying to mitigate the impact. But if EPA officials had done nothing, they would have been derelict in their duty to carry out what the Supreme Court instructed more than three years ago."

EPA Awakened From Bush Slumber

Though the EPA has been neutered and empowered on a cyclical basis throughout its 40-year history, the agency has clearly burst into upswing mode after eight years of dormancy under the latest Bush administration, a time when agency morale was low.

Obama's EPA is clearly not the same snail-paced agency that plodded along in response to a 1996 federal court order requiring it to address new standards for the public health and environmental effects of sulfur dioxide. Jackson issued the new public health standards June 3, after action languished for 14 years. EPA will address the secondary standard, designed to protect the environment, as part of a separate review to be completed in 2012.

Jackson's recent actions, employing the Clean Air Act to regulate greenhouse gas emissions, have power plants, refineries and other big manufacturers on edge.

"You have to give industry credit for picking up on the fact that this is a different EPA," Kaplan said about the vibe and effectiveness of the agency under Jackson. "EPA is better run and is clearly moving forward. The agency has been able to do some pretty amazing things when empowered."

He called the tailoring rule an "honest-to-God" attempt by EPA leaders to regulate emissions while critics scrutinized and questioned the agency's authority to do so.

"Anybody who assumed that EPA's pronouncement to use the Clean Air Act was going to result in years of slow motion and inaction would not be making a smart bet right now," he said.

Kaplan attributed EPA's recent deft use of the Clean Air Act to Gina McCarthy, who heads up the agency's Air and Radiation Office, after a long career with state environmental agencies in Connecticut and Massachusetts.

"She's one of the heroes of the clean air movement," Kaplan said about the blunt and plainspoken New Englander with the Boston accent. "She's an effective manager who gets things done by striking appropriate compromises, motivating people and using humorous anecdotes."

Congress Alone Wields the Emissions Hammer

Those supporting Murkowski's disapproval resolution have long maintained that the Clean Air Act, which was amended in 1977 and again in 1990, would make regulating carbon dioxide and five other greenhouse gases too cumbersome and expensive, especially during sour economic times.

"Sen. Murkowski believes that climate change is a real threat that must be addressed," an update on the senator's Web site stated late Monday. "She is also steadfast in her belief that Congress is the only agency in the United States with the power to tackle the problem in a responsible manner."

But environmental organizations disagree with Murkowski's assessment that the Clean Air Act is a blunt tool never intended to regulate greenhouse gases.

"The idea that EPA is proceeding recklessly and will take the economy up on the rocks, that's silly," Kaplan said, adding that automakers complained in the 1990s they would never be able to meet stricter emission standards. "The history of Clean Air Act legislation shows implementation is cheaper and easier than predicted."

Generally, Murkowski has not opposed the Obama administration's plans to regulate tailpipe emissions and fuel economy standards. Her concern centers around the stationary sources -- big industrial facilities and power plants -- laid out in EPA's mid-May tailoring rule.

That rule exempts small polluters from regulation. However, beginning Jan. 1, large industries already required to obtain New Source Review permits for other pollutants also will have to include greenhouse gases among those permits if their emissions of those gases grows by a minimum of 75,000 tons of carbon dioxide equivalent annually. Other greenhouse gas emitters will be phased in during the next several years.

Jackson Strikes Back

Murkowski's resolution would ignore and override scientific findings and allow oil companies and refineries to pollute without any oversight or consequence, Jackson wrote in her Huffington Post op-ed. She also wrote that it would gut EPA's authority in the clean cars program.

"Undermining a program supported by our automakers and autoworkers, environmentalists and governors ... seems questionable at any time," Jackson wrote. "But going back to a failed approach and deepening our oil addiction at the very moment a massive spill—the largest environmental disaster in American history—is devastating families and businesses, and destroying precious wetlands runs contrary to our national interests."

Murkowski's resolution also subverts what Jackson calls EPA's common sense strategy for reining in heat-trapping gases.

"We know that the local coffee shop or the backyard grill is no place to look for meaningful carbon dioxide reductions," Jackson wrote. "We're tackling our largest polluters and calling on Congress to pass a comprehensive energy and climate law—one that would extend the protection of small businesses."

Clean Air Act Not the Sole Tool

Jackson, of course, isn't the only one calling for Congress to act.

"This Thursday's debate is about senators putting themselves on the record," said Kaplan, the attorney with the Conservation Law Foundation. "If they disapprove of the science, that will be a negative signal that they will take on the most fundamental environmental problem we have."

Steven Biel, the clean energy campaign director at MoveOn.org, views the upcoming vote as a referendum on who will be calling the shots on climate change policy—Congress or big oil and coal companies.

Instead of pitting the Clean Air Act against climate change legislation, Congress and environmental advocates should realize the two can be complementary.

Transitioning from fossil fuels to renewables and other cleaner energy requires a mix of policies that include putting a price on carbon, setting smokestack and tailpipe emissions, creating a nationwide renewable portfolio standard, and strengthening public transit and fuel economy standards, Biel said in an interview.

Meanwhile, O'Donnell is dismissive of a measure that he doesn't think has a prayer of passing.

"I think Murkowski is just trying to bloody the nose of the Obama administration," O'Donnell said. "It's a chance to send a message that hard core Republicans don't want EPA action aimed at reducing climate emissions. Plus, with the upcoming election, it puts a number of Democrats on the spot to see if they will vote for it."

(DC Metro photo: Jill Robidoux. Lisa Jackson courtesy EPA; Lisa Murkowski courtesy US Senate.)

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