By all accounts, Republicans are set to enjoy major gains in both the House and Senate following midterm elections. Speculation is that the Republicans could likely regain control of the House and could even get close in the Senate.
What implications could this change in the political landscape have for climate change regulation?
We have already seen the Senate scrap all efforts at a cap and trade bill this summer. Based upon Senator Reid’s comments that a "piecemeal" approach is on tap, its more than likely cap and trade is off the table for the foreseeable future.
With cap and trade’s dim future, all eyes have been shifting toward U.S. EPA promulgation of climate change regulations. EPA has already finalized greenhouse gas standards for vehicles and will require consideration of greenhouse gases from major stationary sources beginning in 2011 (Tailoring Rule).
Congressional Efforts to Stop EPA
With renewed focus on EPA’s efforts, Republicans made lead the charge toward blocking EPA’s actions through budget maneuvers or by directly blocking the effectiveness of the EPA regulations. (See Reuter’s article)
- Budget Bill Prohibition- Republicans could include in an appropriations bill a ban on the use of EPA funds to administer climate change regulations.
- Block EPA Authority or Delay it- Earlier this year, the Senate debated legislation that would directly block EPA from implementing its rules by undermining its Endangerment finding. Another alternative was floated by Senator Rockefeller- delay EPA’s implementation for two years which would take us to the next Presidential Election. There were 47 out of 100 votes in the Senate supporting a delay in implementation of EPA’s climate change regulations. Its hard to imagine this issue will not be revisited after the midterm elections.
Effectiveness of an Appropriations Blockage
The utility of a budgetary blockage of EPA’s authority to implement the climate change regulations should be seriously questioned. As discussed below, a budget provision prohibiting expenditures doesn’t remove the requirements from the books. Industry will still have to comply with the Tailoring Rule even if EPA can’t use funds to enforce it.
The strategic limitations on use of the appropriations tool was pointed out in a Congressional Research Service in an extensive report:
The regulatory restrictions in appropriations bills that have been enacted during the last 10 years illustrate that Congress can have a substantial effect on agency rulemaking and regulatory activity… These appropriations provisions can prevent an agency from developing a proposed rule, from making a proposed rule final, or from implementing or enforcing a final rule. However…these appropriations provisions cannot nullify an existing regulation (i.e., remove it from the Code of Federal Regulations) or permanently prevent the agency from issuing the same or similar regulations. Therefore, any final rule that has taken effect and been codified in the Code of Federal Regulations will continue to be binding law — even if language in the relevant regulatory agency’s appropriations act prohibits the use of funds to enforce the rule. Regulated entities are still required to adhere to applicable requirements (e.g., installation of pollution control devices, submission of relevant paperwork), even if violations are unlikely to be detected and enforcement actions cannot be taken by federal agencies.
Such an appropriations maneuver could mean businesses must prepare PSD permit applications that address greenhouse gases only to have those permits sit at EPA because it is legally prohibited from paying staff to review them.
Hopefully the real world implications of Congressional efforts to block EPA will be considered. There is no doubt a strong effort will be made after the midterms to block EPA climate change regulations. Without passage of legislation that directly addresses the issue, maybe…just maybe litigation is a better alternative than tricky legislative tactics.