Evan Juska: 3 ways new filibuster rules could affect US climate policy

22 November 2013

The Climate Group’s Head of US Policy, Evan Juska analyzes the latest US climate policy developments and trends in his blog.

Evan writes:

On Thursday, Senate Democrats used a rare procedural move, known as the “nuclear option,” to end the use of filibusters (a procedure where debate is extended, allowing members to delay or stop a vote on a given proposal) on most Presidential nominees.

The rule change means that Presidential nominees for cabinet positions and federal courts (excluding the Supreme Court) can now be confirmed with a simple majority of 51 votes, instead of the 60 votes needed to break a filibuster.

In the New York Times, Jeremy Peters wrote, “the change is the most fundamental shift in the way the Senate functions in more than a generation.”

Here’s 3 ways it could affect US climate policy:

1. GHG regulations should have an easier time in the courts.

The United States Court of Appeals for the District of Columbia (a.k.a. the D.C. Circuit) is responsible for reviewing the rulemakings of US federal agencies, which means that it will determine the legality of any new greenhouse gas (GHG) standards coming out of the EPA.

Currently, the court is staffed by 4 Republican-nominated judges and 4 Democrat-nominated judges - with three open seats. President Obama has been trying to fill those seats with his nominees, but Republicans have systematically filibustered them.*

Now that the filibuster has been lifted, Obama’s nominees can be confirmed on a party-line vote, which would shift the balance of power on the court from an even 4-4, to a 7-4 Democratic advantage. And while judges don’t always rule in favor of the Administration that nominated them, a president’s policies – including Obama’s proposed GHG regulations - are more likely to be upheld if the court is staffed with judges who share his views.

2. But passing bipartisan energy legislation could get even tougher.

Senate Republicans are not happy about the change. Even those with a long track record of working with Democrats on energy and climate issues, like Senator Susan Collins of Maine, said the move may hurt existing bipartisan energy efforts, like the Shaheen-Portman energy efficiency bill, because it “poisons the atmosphere.”

This might not seem like a big deal now because of how little progress such efforts were making before the change. But the fact is that to meet the country’s long-term climate goals, Congress will eventually have to get back to passing bipartisan energy legislation – and that day now looks even farther off than it did before.

3. Unless this is the “beginning of the end” of the filibuster altogether.

Thursday’s rule change only applies to Presidential nominees. Passing legislation in the Senate still requires 60 votes.

But some have suggested that the precedent set on Thursday (i.e. using Senate Rule 22 to limit the filibuster with only 51 votes) could pave the way for a future Senate majority to use the same procedure to get rid of the filibuster altogether.

In the Washington Post, Ezra Klein wrote “The filibuster now exists in what you might call an unstable equilibrium… The moment one party or the other filibusters a consequential and popular bill, that's likely the end of the filibuster, permanently.”

That may or may not happen. But if it does, the ability to pass new legislation with only 51 votes in the Senate would change the game for US policymaking.

For climate policy, it wouldn’t mean that a US carbon price would be imminent. Based on symbolic votes taken earlier this year, carbon-pricing still only appears to have about 42 supporters in the Senate – 9 votes shy of even a simple majority.**

But it would make the road to passage for more popular climate and clean energy policies (which often face strong opposition from a minority of Senators) a lot easier. And that will be all the more true if more and more Americans continue to view climate change as a real problem in need of fixing.

Of course, if Republicans regain the Senate majority in 2014 or beyond, it would also make it easier for anti-climate policies to pass – and thus the need for Republican climate supporters even more important than it is today.


* Republicans did unanimously confirm one of President Obama’s previous nominees, Sri Srinivasan

** And the Republican-controlled House would still oppose it.

Related news:

Evan Juska: Why a carbon tax isn’t part of President Obama’s climate plan

The three biggest challenges to Obama’s climate change plan

US midterms unlikely to change carbon pricing politics

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