Showdown in the Senate over EPA Climate Change Authority

As reported in the New York Times, Senator Murkowski announced that  the Senate will vote June 10th on her resolution to block EPA from implementing climate change regulation under the Clean Air ActThe proposal was announced this past December and the vote follows finalization of EPA regulations that will initiate regulation of greenhouse gases (GHGs) January 2011.

The legislative activity stems from the Supreme Court ruling in Massachusetts v. EPA which held that EPA had the authority to set standards for motor vehicles under Section 202 of the Clean Air Act to control GHGs.  Prior to establishing standards, Section 202 requires the EPA to make a finding that GHGs "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."  (so called "endangerment finding") 

On January 14, 2010, EPA finalized its Endangerment Finding.  The Murkowski resolution would undue the EPA finding, thereby effectively blocking implementation of GHG standards for motor vehicles. Here is the language from the resolution:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Environmental Protection Agency relating to the endangerment finding and the cause or contribute findings for greenhouse gases under section 202(a) of the Clean Air Act (published at 74 Fed. Reg. 66496 (December 15, 4 2009)), and such rule shall have no force or effect.

The resolution is based on the Congressional Review Act which gives Congress authority to disapprove Agency rules.   If utilized the CRA says the rule "may not be reissued in substantially the same form."  This from the New York Times:

Murkowski's resolution would need 51 votes to clear the chamber. She already has 41 co-sponsors, including three Democrats: Sens. Mary Landrieu of Louisiana, Blanche Lincoln of Arkansas and Ben Nelson of Nebraska.

Even if the resolution passes the Senate, it faces an uphill climb in the House, which does not have the same expedited procedures, and it faces a likely veto from President Obama. EPA Administrator Lisa Jackson has warned that nullifying the endangerment finding would upend the administration's joint EPA and Transportation Department fuel economy standards and greenhouse gas emission limits for cars and light-duty trucks.

(You can watch Senator's Murkowski's Floor Statement by clicking here)

While there may be a decent chance the resolution passes the Senate, it almost certainly won't make it past the President's desk. 

What is the true "scope" of the resolution?

While the resolution will never be signed by the President, does the resolution really accomplish what it is intended to accomplish- block EPA from regulating GHGs under the Clean Air Act?  There are a few reasons to believe that this is not the case:

  • Endangerment Finding is Limited to Motor Vehicle Rule-  The Endangerment Finding is a prerequisite to regulation of GHGs from motor vehicles.  However, GHGs can become a "regulated pollutant" through other means than the motor vehicle standards.  Any EPA action that is viewed as controlling emissions of GHGs automatically triggers multiple provisions of the Clean Air Act, most notably the New Source Review program.  While the resolution would delay EPA, it does not necessarily block EPA from regulating GHGs under the Clean Air Act.
  • CRA Standard has wiggle room-  The CRA states the regulation cannot be issued in "substantially the same form."  Couldn't EPA simply make a new affirmative endangerment finding based upon a wider set of scientific data or more recent data?  Couldn't this be viewed as a finding that is not "substantially" in the same form?

Senator Murkowski's effort is limited by what she can accomplish under the CRA.  Obviously, there must be an EPA regulation adopted for Congress to use its authority block it.  But let's be clear going forward, using the CRA means Congress cannot truly block EPA from regulating GHGs.  That could only be accomplished through Legislation which removed GHGs as a pollutant under the Clean Air Act. 
 

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