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HOME THE MAGAZINE THE HOTLINE CONGRESSDAILY THE ALMANAC 3121 Friday, January 29, 2010

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By Amy Harder NationalJournal.com

Sen. Lisa Murkowski, R-Alaska, last week introduced a disapproval resolution -- essentially a congressional veto -- that would stop the EPA from controlling greenhouse gas emissions under the Clean Air Act. Murkowski, the top Republican on the Energy and Natural Resources Committee, argued that Congress, not EPA, should determine federal climate change policy.

Should EPA regulate carbon dioxide emissions? Is the Obama administration using the agency to force Congress to pass legislation? Could EPA regulation help industry plan for a low-carbon future? Should the agency's power be temporarily suspended to give Congress more time to hash out a bill? Or should EPA be barred from controlling greenhouse gases under the Clean Air Act? How could this STAY CONNECTED resolution affect the overall debate on climate legislation? Subscribe to this blog Subscribe to comments for this post Leave a response 16 Responses What is RSS? ARCHIVES Expand all comments January 2010 Can Obama Re-energize Climate? JANUARY 28, 2010 5:07 PM Should Congress Stop EPA? Cap-And-Trade: Time For Plan B? A Resolution Destined to Fail Should Taxpayers Back New Nuclear? By Richard Revesz What's Next In The Senate? Dean, New York University School of Law December 2009 November 2009 Almost everyone agrees that legislative climate action is preferred over regulation—it October 2009 Do you is the simpler, more democratic and longer lasting way to bring down our carbon September 2009 August 2009 agree? emissions. But the congressional process has stalled out and Senator Murkowski’s July 2009 Submit attempt to shut down EPA’s ability to regulate is not helping. Procedurally, a June 2009 disapproval resolution is destined to fail—at best it is a waste of time, but more likely May 2009 a political move designed to slow down progress on climate legislation. April 2009 March 2009 First, it should be noted that the form of legislative action Senator Murkowski is February 2009 suggesting has only been used successfully one time—to strike down a Clinton-era January 2009 regulation requiring more ergonomic workplaces. It is so rare, in part, because it December 2008 asks a President to sign a bill that reverses the actions of an administrative agency November 2008 —something this is unlikely to happen absent a change in administrations. If the October 2008 effort is vetoed, the House and Senate would each require a two-thirds supermajority vote to override it. SPECIAL GUEST MODERATORS

Even before these hurdles, this ... T. Boone Pickens, Week of May 18 Sen. Lisa Murkowski, R-Alaska, Week of Oct. 5 Sen. Jeff Bingaman, D-N.M., Week of Nov. 9

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JANUARY 27, CONTRIBUTORS Read More 2010 3:28 PM Jonathan H. Adler Jon A. Anda Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail Jay Apt Anna Aurilio Rep. Joe Barton, R-Texas Bill Becker Frances Beinecke Bob Bendick Kenneth Berlin agree Mark Bernstein Submit Denise Bode Skip Bowman Postpone EPA Reg of Stationary Sources Sen. Barbara Boxer, D-Calif. Sen. Jeff Bingaman, D-N.M. By Cal Dooley Rep. John Boehner, R-Ohio CEO, American Chemistry Council Peter Bradford Michael Bradley EPA can promote both environmental improvement and economic recovery by Jeffrey Breneman postponing regulation of greenhouse gas emissions from stationary sources. With Carol Browner Congress and the Administration hard at work on job creation and a national climate Kateri Callahan and energy policy, premature stationary source regulation could throw both efforts Sen. Ben Cardin, D-Md. off course. Guy Caruso Red Cavaney The economic recovery package and new Administration proposals contain Terry Chapin important investments in clean energy development that can reduce greenhouse gas Graciela Chichilnisky emissions and speed job creation. Yet these investments would be delayed, scaled Paul N. Cicio back or cancelled if EPA moves ahead with stationary source regulation early this Eileen Claussen year as planned. Facilities that want to implement energy efficiency and other clean Josephine Cooper Mark Cooper energy technologies would be among the millions of sources required to get permits. Keith Crane They will be stymied by the confusion surrounding the absence of permitting Kyle Danish requirements and the flood of applications to EPA and state agencies. Even if EPA’s Lee DeHihns “tailoring rule” (raising the threshold for GHG emission from 250 to 25,000 tons per Paul Dickerson year) ... Rep. John Dingell, D-Mich. Bob Dinneen Read More Cal Dooley Charles Drevna Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail Rep. Eliot Engel, D-NY Dan Esty Stephen Eule JANUARY 27, 2010 2:10 PM Gary Fazzino Marvin Fertel Resolution Would Protect Economy Richard A. Foltman, CCM Michael C. Formica By Amy Harder Dirk Forrister NationalJournal.com Maggie L. Fox Jack Gerard The following comments are from Marlo Lewis, a senior fellow at the Competitive Thomas Gibson Enterprise Institute: Chuck Gray agree D.J. Gribbin Sen. Murkowski’s resolution of disapproval is a gutsy action intended to safeguard Submit Donna Harman the U.S. economy, government’s accountability to the people, and the separation of Rep. Doc Hastings, R-Wash. powers under the Constitution. Jeff Holmstead David Holt Critics claim that the resolution attempts, in King Canute fashion, to repeal physics. Marian Hopkins They say it is equivalent to Congress voting to overturn the Surgeon General’s 1964 Skip Horvath finding that cigarette smoking causes cancer. Rubbish! David E. Hunter Sen. James Inhofe, R-Okla. A strong case can be made that the endangerment finding is scientifically-challenged. Bill Johnson But that’s not what the Murkowski resolution is about. Gene Karpinski Joseph T. Kelliher As the Senator made clear in her floor statement, and as anyone can see from the Jim Kerr text, the resolu... Kevin Knobloch Bill Kovacs Read More David Kreutzer Fred Krupp Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail Tom Kuhn Janet Larsen John Larsen JANUARY 27, 2010 12:43 PM Jeannette Lee Michael Levi Mindy Lubber

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Congress: Fashion a Step Forward Arjun Makhijani Rep. Ed Markey, D-Mass. By Margaret Kriz Hobson Roger Martella NationalJournal.com Dave McCurdy Bill Meadows The following comments are from Frank M. Stewart, President and COO, American Rep. John L. Mica, R-Fla. Association of Blacks in Energy Elizabeth Moler Scott Moore agree The answer to questions regarding any EPA greenhouse gas regulation hinges on the Jennifer Morgan Submit answer to a broader question regarding national policy: are US legislators (and the Jan Mueller voters who elected them) right to be skeptical of proposals that are not the product of Sen. Lisa Murkowski, R-Alaska a very broad, participatory process? The answer, in most cases, is “yes.” Mark Muro Rep. James L. Oberstar, D-Minn. One can understand that members of the United States Senate are more than a bit Frank O'Brien-Bernini frustrated by the difficulty and the complexity of crafting a policy to guide this William O'Keefe nation’s efforts in addressing climate change. After all, the Congress has been Marvin Odum working at this for only a little over 300 days and nights. Alan Oxley David Parker However, the issue -- not so much with EPA specifically, as with any process that Jonathan Pershing would purport to move to action without the guidance of the people’s representatives T. Boone Pickens Rep. Joe Pitts, R-Pa. -- is of concern. Senator Murkowski is correct to be wary of any proposal that hasn’t Carl Pope had to withstand a broad, pa... Paul Portney Tim Profeta Read More Thomas J. Pyle

Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail Hal Quinn JANUARY 27, 2010 7:43 AM Rep. Nick Rahall, D-W.Va. Rhone Resch Natural Gas More Costly With Regulation Richard Revesz Jim Rogers By Amy Harder Barry Russell NationalJournal.com David Sandalow Don Santa Kathleen Sgamma, Director of Government Affairs for the Independent Petroleum Rodger Schlickeisen Association of Mountain States (IPAMS), submitted the following response: Liz Schrayer Larry Schweiger agree No, the EPA should not regulate greenhouse gas emissions under the Clean Air Act Rep. Jim Sensenbrenner, R-Wis. Submit (CAA). Regulation under CAA would be be intrusive, inefficient, and excessively Robert J. Shapiro costly. The CAA was meant to control traditional air pollution, not greenhouse gases Phil Sharp that come from every home and commercial facility in America. Congressional action Robert C. Sisson utilizing a market system that does not disadvantage natural gas is preferrable to an Jeffrey Smidt all-encompassing command-and-control approach. Bill Snape Robert Socolow Natural gas is a clean energy source that offers significant greenhouse gas reductions Henry D. Sokolski compared to other conventional fuels. By increasing utilization of natural gas for base Gus Speth load power generation to 50%, the US could experience a 40% reduction in Rob Stavins Jeff Sterba emissions from the electricity sector. Natural gas enables renewable energy such as Frank M. Stewart wind and solar by providing a back up. However, EPA regulation of greenhouse gases Steven Stoft under the CAA would make ... Linda Stuntz Paul Sullivan Read More Randall Swisher Margo Thorning Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail Rep. Fred Upton, R-Mich. David Waskow Daniel J. Weiss JANUARY 26, 2010 4:50 PM Jon Wellinghoff Rich Wells Murkowski/Lincoln Reflect Real Concerns Andrew Wheeler Jonathan Wootliff By Hal Quinn President, National Mining Association ADD ENERGY/ENVIRO EXPERTS TO YOUR SITE Sens. Lisa Murkowski (R-Alaska) and Blanche Lincoln’s (D-Ark.) bipartisan disapproval resolution gives a legislative voice to all those who have been wringing their hands over the prospects of what Rep. John Dingell candidly assessed as a agree “glorious mess” if Congress left the regulation of greenhouse gas emissions to the Submit Environmental Protection Agency (EPA) under the Clean Air Act.

President Obama, EPA Administrator Jackson and various members of Congress have expressed the same concern in somewhat less-colorful language. They have all said regulation under the Clean Air Act is not the best option, and the regulatory pathway is fraught with peril. Yet, here it comes.

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Murkowski and Lincoln, instead of throwing up their hands and saying the ensuing JANUARY 26, regulatory train wreck is inevitable, have instead said, “Wait a minute.” In their view,2010 4:43 PM Congress should not abdicate its policy responsibilities simply because it has been unable to rally round either the House-passe...

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agree Submit Congress, Not EPA, Should Lead By David Holt President, Consumer Energy Alliance

The Consumer Energy Alliance is concerned that using the EPA’s Clean Air Act as a vehicle to control greenhouse gas emissions could effectively bar Americans from being a part of this very important national climate change debate. Consumer Energy Alliance member companies are taking a hard look at EPA’s proposed action.

While CEA has not taken a formal position on current climate change proposals, the climate change issues and potential legislative changes should be debated openly and BLOGS should ensure that all consumers of energy, effectively all Americans, have a chance for their voices to be heard. After all, this is an issue that will affect everyone, and has Hotline On Call the potential to affect people in a dramatic way. During this time of economic WHO DAT SAY DEY GONNA BEAT DAVID VITTER? downturn when so many Americans are already struggling with energy prices, January 29, 2010 4:42 pm further changes to US energy policy should be fully vetted with the American consumer. We look forward to a transparent climate change process led by the US Tech Daily Dose Congress. FCC REGULATOR WORRIED ABOUT BROADBAND PLAN Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail January 29, 2010 4:28 pm

Under The Influence BEVERAGE LOBBY SPENT $18.9 MILLION TO FIGHT JANUARY 26, 2010 11:20 AM TAX EPA Threat Stalling Action On Climate January 29, 2010 4:06 pm By Stephen Eule Pollster Vice President for Climate and Technology, U.S. Chamber of Commerce OBAMA VS. LUNTZ January 29, 2010 4:55 pm No, the Environmental Protection Agency should not regulate greenhouse gas (GHG) emissions under the Clean Air Act. The Chamber’s been very clear that the CAA Insider Interviews wasn’t designed for-- and is ill suited to address-- the complexities of reducing GHG agree PASSING THE GREEN BATON emissions. Does anyone really believe, for example, that EPA can set a National January 29, 2010 12:30 pm Submit Ambient Air Quality Standard for greenhouse gases when the U.S. accounts for, on EXPERTS net, only about a 15% (and shrinking) share of global emissions? How can EPA set what it can’t control? Experts: Economy HOW MUCH DEBT IS TOO MUCH? One of the major selling points of a comprehensive energy and climate change bill is Latest response: Len Burman that it would establish a single set of rules for controlling GHGs. It isn’t working out January 27, 2010 3:37 pm that way, however. The Waxman-Markey bill, for example, doesn’t bar EPA from regulating businesses that don’t fall under the rubric of the cap and trade scheme the Experts: Education bill would set up. The Kerry-Boxer bill goes even further and leaves the door open to CONCERNS ABOUT RACE TO THE TOP EPA regulation of “capped” and “uncapped” facilities. And EPA Administrator Lis... Latest response: Frederick M. Hess January 29, 2010 10:48 am Read More Experts: Health Care

Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail REDUCING THE UNINSURED: TAKE II Latest response: Darrell G. Kirch, M.D. January 29, 2010 1:00 pm

JANUARY 26, 2010 10:48 AM Experts: National Security SHOULD THE U.S. GOVERNMENT BE A FOREIGN Legislative Approach Is The Way To Go CENSORSHIP BUSTER? By Thomas Gibson Latest response: Ron Marks January 26, 2010 9:47 am President & CEO, American Iron and Steel Institute Experts: Transportation AISI strongly opposes any greenhouse gas regulation by the EPA. We agree with INTO PERFORMANCE-BASED TRANSPORTATION POLICY

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President Obama and his comments throughout the past year that a legislative Latest response: Steve Winkelman January 29, 2010 3:52 pm approach is the right mechanism for pursuing the reduction of greenhouse gases. agree Regulation under the Clean Air Act would require new facilities and facilities Submit undergoing major modifications to obtain permits covering their emissions. Without certainty on the availability and timing of permits and other issues affecting the cost of compliance with greenhouse gas regulation, the very investments that are needed to create jobs and further the nation’s economic recovery will be delayed, cancelled, or exported.

Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail JANUARY 26, 2010 10:04 AM Clean Air Act Is Tested; It Works By Carl Pope President, Sierra Club

The claim that the Clean Air Act can't work effectively to clean up carbon dioxide pollution is nonsense. Carbon dioxide is largely emitted from exactly those kinds of emission sources which the Clean Air Act has already cleaned up with great success; agree power plants, refineries, factories, vehicles. There is nothing new or unprecedented Submit here. Yes, there are small sources that shouldn's be required to clean up, but that's true for pollutants like nitrogen oxides and particulates as well. (They come out of your fireplace, and you don't need a permit to light the yule log.)

And the Clean Air Act specifically envisaged that science would discover new pollutants that would need regulation, and provided that EPA would add to the list of regulated substances. It even envisaged pollutants whose main harm would be to the climate, listing damage to climate as one of the criteria which would require EPA to require a clean up.

Nor is there a conflict between Congressional action and EPA regulation. Congress has on a number of occasions stepped in to tell EPA what l...

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JANUARY 25, 2010 6:46 PM It's Not the Dirty Air Act By Frances Beinecke President, Natural Resources Defense Council

The EPA should regulate carbon emissions because that is what the Clean Air Act requires it to do. We can’t ignore a 40-year-old law simply because some polluters would prefer it. And we certainly can’t gut a bedrock law because the polluters’ agree political allies make erroneous claims about how that law works. Submit

Senator Murkowski asserts, for instance, that “the Clean Air Act was written by Congress to regulate criteria pollutants, not greenhouse gases.” That is incorrect. The Supreme Court held in Massachusetts v. EPA that the Clean Air Act unambiguously covers all kinds of air pollutants, including greenhouse gases. Indeed, the court noted that the law has a “sweeping definition” of air pollutants.

Senator Murkowski also claims that her disapproval resolution “has nothing to do with the science of climate change.” Yet this too is incorrect. The resolution explicitly overturns the EPA’s scienc...

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JANUARY 25, 2010 12:52 PM

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Can Anyone Answer This? By Jon A. Anda Executive-in-Residence Fuqua School of Business, Visiting Fellow Nicholas Institute

If the EPA wanted to push the legal envelope to limit large-source co2 emissions (without the inefficiency of command & control) an annual abatement obligation with debiting or crediting of abatement accounts (amongst regulated facilities) agree seems to have merit. This approach, call it baseline or abatement trading (or my Submit www.justcapit.org name) doesn't distribute or even create permit assets - though it does create a "rent" if new sources are simply barred. While it seems entirely clear that EPA can't implement cap and trade on its own - and they are restricted in creating trading markets - could facility-level debiting and crediting fall into some kind of safe harbor as a way to act on their own endangerment finding?

Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail JANUARY 25, 2010 12:47 PM Preserve the Clean Air Act's Protections By Larry Schweiger President and CEO, National Wildlife Federation

Just last week, NASA announced 2009 was the 2nd-hottest year on record, with the 2000s being the hottest decade on record. That leaves Sen. Murkowski and her supporters in a delicate position. With climate science looking more dire by the day, agree why would they try to direct the Environmental Protection Agency to ignore scientific Submit climate findings about global warming’s threat to human health?

Sen. Murkowski’s effort would allow unlimited emissions of carbon pollution from the biggest corporate polluters and could stall the growth in clean energy jobs by creating uncertainty about our government’s commitment to a cleaner energy future. Clean Energy Works has rightly called it a Dirty Air Act.

Sen. Murkowski says she prefers a legislative solution and we encourage her to focus on finding one. But in the meantime, we urge her to stop attacking the EPA and the Clean Air Act, which are the best tools we currently have t...

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JANUARY 25, 2010 9:14 AM EPA Must Regulate Emissions By Bill Snape Senior Counsel, Center For Biological Diversity

It is sad that we are still debating some of these questions. There is no doubt that EPA must and will regulate carbon dioxide and other greenhouse pollutants. It is a result sanctioned by statute, regulation, Supreme Court precedent and common agree sense. It is already happening. Submit

Still subject to debate, of course, are the additional rules or contingencies Congress will add to the equation of solving the climate crisis. The fact that Murkowski now doesn’t have the votes in the Senate to sever the Clean Air Act’s lifeline to greenhouse pollution reduction is testimony to American public sentiment in favor of environmental protection and combating global warming. The President knows this.

Let’s get to work on actually solving our very serious problem.

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JANUARY 25, 2010 7:48 AM

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Wrong To Disarm EPA By Eileen Claussen President, Pew Center on Global Climate Change

Steve Seidel, Vice President for Policy Analysis at the Pew Center, has written the below response in place of Eileen Claussen.

agree With Thursday’s floor statement by Senator Murkowski announcing her joint Submit resolution to override EPA’s endangerment finding, we were introduced to a new term to add to our lexicon – a disapproval resolution. If like me, you only had a vague recollection that Congress had given itself the ability to override any new federal regulation, some quick research was in order.

This authority is contained in the Congressional Review Act of 1996 (CRA) and was passed as one element of the Contract with America. In the 13 years since enactment, it has been successfully used once. The 2001 Congress overturned an end-of-term rule issued by OSHA under the Clinton administration that would have imposed ergonomic requirements in certain workplaces. Two other resolutions have passed the Senate but not the House (in 2003, a FCC rule setting limits on broadcast media ownership and in 2005, a USDA rule setting minimum risk zones to protect ag...

Link to this response: http://energy.nationaljournal.com/2010/01 Print | Share | E-mail JANUARY 25, 2010 7:46 AM 4 Reasons To Stop EPA By William O'Keefe CEO, George C. Marshall Institute

Greenhouse gas regulation under the Clean Air Act would command and control into uncharted waters and be very bad for jobs, bad for economic recovery, and devastating for American competitiveness. Carbon dioxide is such a naturally agree occurring and intricately interwoven part of our daily lives that attempting to Submit manage it through sweeping, command-and-control regulations intended to mitigate adverse health affects would be akin to deploying a nuclear bomb to open a locked door. (Ineffective and messy.) By allowing EPA to unleash this blunt tool on Americans, Congress would be failing to protect their constituents.

This pending decision also underscores a broader issue. A failure to rein in EPA would signal that legislators still haven’t gotten the unmistakable message that Americans, and most recently Massachusetts voters, have been sending to Washington’s political elites. Here are four important reasons:

1. Science Trumped By Political Science

In May 2007, shortly after the Supreme Court decision, I published a Marshall Institute paper, �...

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