Evan Juska: Would Congress reject new EPA carbon regulations? A vote would be close.

7 February 2013

As the world’s largest economy and second largest emitter, policy leadership from the United States will be critical in the transition to a Clean Revolution. The Climate Group’s Head of US Policy, Evan Juska analyzes the latest US climate policy developments and trends. 

By Evan Juska, Head of US Policy, The Climate Group.

With Congress still divided on the issue of climate change, many expect President Obama to use his regulatory authority under the Clean Air Act to further reduce US greenhouse gas emissions.

Indeed, most of the progress made in his first term was achieved through this approach - including the adoption of new fuel efficiency standards for cars and light trucks, and the introduction of carbon emission standards for new power plants.  

In his second term, the President can have the greatest regulatory impact by introducing carbon emission standards for existing power plants, which account for about 40% of US emissions. A new proposal by NRDC estimates that pursuing these regulations in an economically responsible way could reduce power sector emissions by 34% by 2025.

But the question remains whether Congress would support such new regulations, especially if they were taken forward in a unilateral fashion. They would be subject to the Congressional Review Act, which allows Congress to stop a new agency rule from taking effect within 60 days of its introduction, with only a simple majority vote (i.e. 218 votes in the House and 51 votes in the Senate).

The Republican-controlled House would almost surely vote to reject such a rule, as it did in 2011 by a vote of 255-172.

How the Democrat-controlled Senate would respond is less clear.  But an initial look at the voting records and public statements of the new Senate suggests that a vote would be close.

Forty-two existing Senators have already voted to take away the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas emissions under the Clean Air Act, either through Senator Lisa Murkowski’s Senate Joint Resolution in 2010 or Senator Mitch McConnell’s similar Amendment in 2011.

In addition, four new Senators also voted to strip EPA’s authority during their tenure in the House (Dean Heller (R-NV); Jeff Flake (R-AZ); Joe Donnelly (D-IN); and Tim Scott (R-SC)). And two other new Senators are on the record opposing it (Deb Fischer (R-NE) and Ted Cruz (R-TX)) – suggesting that 48 of the 51 votes needed to reject new carbon regulations could be secured.

Four wildcards could swing the vote either way. Senators John Rockefeller (D-WV) and Susan Collins (R-ME) both changed their votes from 2010 to 2011, in favor of allowing the EPA to retain its authority. But it is possible that they could support EPA’s authority to regulate carbon in principle, without supporting specific new rules for existing power plants. Senator Rockefeller was concerned enough about the issue in 2011 to introduce his own bill preventing new carbon regulations for power plants from going forward for two years. "Congress, not the EPA, must be the ideal decision-maker on such a challenging issue," he said at the time.

In addition, new Senators Heidi Heitkamp (D-ND) and Tim Kaine (D-VA) have so far been ambiguous about their position, standing precariously between their party’s ambition on climate on the one side, and their state’s reliance on coal on the other.

Senator Heitkamp has already demonstrated her willingness to go against her party on environmental issues with her strong support for the Keystone XL pipeline. While Senator Kaine’s energy plan calls for the “use of all Virginia energy sources [including] coal”, at the same time opposing “ongoing efforts to weaken environmental regulations that are needed to protect public health”.

Many have pointed out that President Obama would veto any attempt by Congress to prevent new carbon regulations from going forward. And despite the President’s reluctance to use his veto in his first term, this is probably true.

However, that doesn’t mean that a rejection by Congress would be purely symbolic. Any new regulations that use flexibility mechanisms to keep costs down, as they do in the NRDC proposal, would be subject to litigation and ultimately, approval by the courts. And the intensity of the litigation process will no doubt be heightened if Congress rejects the regulations.

In addition, in the case of a veto, Congress is likely to redouble its effort to stop or slow the new rules through other means, such as the appropriations process.  Finally, such a scenario pitting the President against Congress on a key environmental rule would lead to further polarization on the issue of climate change in general, making progress on other climate policies that much more difficult to achieve.

So while Congress may not be able to stop new carbon regulations outright, its opinion on the issue matters. And at the moment, it looks like that opinion could go either way. 

Read more by Evan Juska in The Climate Group's Blogs.

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