Last week, Senator Voinovich drew attention and criticism for proposing a significant expansion of the preemption language in the forthcoming bi-partisan climate bill to be introduced by Senators Kerry, Lieberman and Graham. Failure to carefully consider the preemption language and possible additional limits on other regulatory authority would be short-sighted.
One of the main reasons for Congress to pass climate legislation would be to remove the morass of uncertainty and mounting litigation in relation to climate change regulation. If the bill has narrowly drawn preemption language, the certainty the businesses need will simply be non-existent.
The whole point of climate legislation should be to develop a national strategy to address the issue. A narrow preemption would mean creation of new regulatory authority that just adds to the current chaos surrounding climate regulation.
Here is a quick summary of what Senator Voinovich is proposing as reported in the New York Times :
Voinovich is circulating a proposal (pdf) that would go beyond Clean Air Act pre-emptions to block the federal government from regulating greenhouse gas emissions under laws including the Endangered Species Act, the Clean Water Act and the National Environmental Policy Act. The amendment would fully prohibit states from regulating greenhouse gases based on their effects on climate change and would prohibit public nuisance litigation related to climate change.
Notably, Voinovich’s measure would also prevent EPA from moving forward with its part of a joint rulemaking finalized this month with the Transportation Department. The rules seek to raise the fuel economy of the nation’s passenger fleet while imposing the first-ever greenhouse gas standards on cars and trucks.
The bi-partisan bill was supposed to be released today. However, political issues over immigration have "temporarily" delayed introduction of the new measure. Without viewing the new legislation, its difficult to make a comparison between the Voinovich proposal and the bi-partisan legislative proposal. From what is anticipated, here is the break down of pre-emption language:
|Regulatory Authority||Senator Kerry’s Bill||Senator Voinovich Language|
|EPA’s New Source Review and other Clean Air Act Authority||Yes||Yes|
|Vehicle CO2 Emission Standards||No||Only Transportation would have authority|
|Endangered Species Act||No||Yes|
|Public and Federal Nuisance Actions||No||Yes|
|State and Regional Regulations (Ex: RGGI)||Maybe||Yes|
EPA’s Clean Air Act and New Source Review Regulations
EPA’s Tailoring Rule is perhaps the best example of vague climate change regulatory authority. EPA admits that regulation of CO2 like any other pollutant would lead to absurd results. The Tailoring Rule is meant to phase in regulation of CO2. However, no one knows whether EPA has the authority to phase-in those regulations. Is that something we really want to leave to chance?
Public Nuisance Lawsuits
The pre-emption language must include public nuisance claims. Courts across the country have had a influx of suits filed against large greenhouse gas emitters seeking redress for their contribution to climate change. Right now the Courts are split over whether the suits "raise a political question" which is outside the review of the judiciary. Also, if Congress acts in passage it may pre-empt some of the federal nuisance authority Plaintiffs rely upon. However, it is very difficult to see how that legal question shakes out if the Kerry Bill initially only covers utilities.
Even if Senator Kerry’s bill uses a phased in approach, the bill should explicitly pre-empt nuisance lawsuits. Expensive litigation that often leads to inconsistent Court rulings is no way to develop a common sense regulatory policy.
Regional and State Regulations
If the bi-partisan bill fails to pre-empt State and regional climate change regulations we will be left with a patchwork regulatory scheme across the country. Avoiding such a patchwork regulatory scheme was one of the major reasons the Obama Administration decided to push the compromise on vehicle emission standards. Otherwise, California and other states would have established separate vehicle standards only applicable in their states.
With the bills anticipated narrower focus, expansive preemption may be much more difficult. It is anticipated that the bi-partisan bill will start with limits on the utility sector and possibly phase in other sectors of the economy over time. If a bill passes, what remains as legal authority becomes even more important if the bill has a narrow focus.
Environmental groups will be looking to press for action in all areas where authority would remain. The logical argument for Congressional action is to remove the uncertainty and develop a national regulatory approach to addressing climate change. This can only be accomplished if the focus is on the bill as THE approach, not just one new regulation to add to the existing patchwork of regulations.