According to a legal analysis from the Institute for Policy Integrity (PDF), the Waxman-Markey bill currently holed up in a Congressional committee isn’t the only way the United States might get a cap-and-trade system in the next year or so. In the wake of the recent ‘endangerment finding, the IPI analysts conclude that the Environmental Protection Agency (EPA) has sufficient authority under the Clean Air Act to create a cap-and-trade system all by itself, without Congressional input:
If Congress fails to act, President Obama has the power under the Clean Air Act to adopt a cap-and-trade system that auctions greenhouse gas allowances. President Obama also has the power under the Clean Air Act to implement an executive agreement at the international level, rendering Senate approval of a climate treaty unnecessary. EPA’s first priority must be to meet its legal obligations without impeding the work being done in Congress. But if Congress fails to act decisively, then putting those powers to use will be an essential stop‐gap to avoid complete inaction on climate change.
While the threat is unlikely to be realized (the EPA would probably feel like they are overstepping themselves), it might be a useful stick with which to drive action in Congress. The Republicans on the relevant committee are all resolutely opposed to Waxman-Markey, but might find their thinking altered in the event that cap-and-trade became an inevitability, with the option of either their involvement in design or their total sidelining.
Incidentally, the fact that not a single Republican on the House Energy and Commerce Committee is considered likely to support the bill demonstrates what a dinosaur party they really are. The world is finally starting to move on climate change mitigation, with the United States playing a critical role in that development. To simply make themselves into obstacles – denying the science and obstructing the political process – demonstrates that the Republican leadership just doesn’t have a handle on what is arguably the most critical issue of the contemporary era.
EPA could create cap and trade if Congress won’t (04/27/2009)
The only major difference, said Livermore, is that agency rules would not have the flexibility to let polluters offset their emissions by paying for reductions elsewhere. That’s a key cost-saving provision in the Waxman-Markey bill.
Proponents of climate action see the prospect of EPA’s rules as a not-so-secret weapon for motivating Congress to move faster on legislation, which the Obama administration and many lawmakers have said is a better way to mitigate climate change while minimizing costs.
“I think it’s important for people to be thinking about these issues, because there’s a reasonable chance that Congress won’t act this term,” said Robert Wyman Jr., an attorney with the firm Latham & Watkins and a longtime member of EPA’s Clean Air Act Advisory Committee.
“This report, in that context, is a significant contribution,” he said. Wyman, however, noted that a few of the report’s conclusions could be stretching legal precedents and the language of the statute.
For example, he said, the idea that EPA itself could sell permits — an argument that hinges on its system avoiding the legal label of a “tax” — is asking a lot of the courts to accept. A more legally feasible route, he said, could be for EPA to give permits to states for free and allow them to set up their own auctions.
Livermore called that a good backup option, but said he believed EPA could avoid the tax label if its auctions were not for the purpose of raising revenue and were instead considered simply a “fee.”
If Congress produces a flaccid carbon pricing system – full of exceptions and handouts to industry – will the EPA have any power to toughen it, or force Congress to do so?
Climate change
A green figleaf
Apr 23rd 2009
From The Economist print edition
The EPA’s decision on greenhouse gases provides a boost for gloomy greens
THE decision on April 17th by the Environmental Protection Agency (EPA) that six greenhouse gases are a danger to the environment and to human health has come at a good time for the green lobby. It needed a boost; for hopes in Washington, DC, that Congress will pass legislation to control emissions before December, when the world gets together in Copenhagen to decide what to do when the Kyoto protocol runs out, are low—and falling.
The EPA has been mulling the harmfulness of greenhouse gases since 2007, when, in a case brought by a coalition of states, cities and NGOs, the Supreme Court ruled that it should regulate greenhouse gases if they were found to be toxic. As expected, the EPA, now run by Lisa Jackson, who brings to the job 20 years of experience as a regulator who’s tough on business, gave a provisional ruling that they were; a final decision will come after a 60-day period of public consultation.
Legislation to cap carbon emissions, though supported by the administration, is struggling to get through Congress. So greens are delighted, because the EPA’s decision allows emissions to be regulated under existing rules. Businesses and congressmen who dislike the idea of legislating to control emissions may now decide that a new law, over which they can have some influence, would be better than regulation through an old one. According to Edward Markey, co-author of the main cap-and-trade bill in the House, “it is no longer a choice between doing a bill or doing nothing. It is now a choice between regulation and legislation.”
US climate agency declares CO2 public danger
Environmental Protection Agency declaration allows it to impose emissions cuts without agreement of reluctant Senate
The Obama administration adopted its climate change plan B today, formally declaring carbon dioxide a public danger so that it can cut greenhouse gas emissions even without the agreement of a reluctant Senate.
The timing of the announcement – in the opening hours of the UN’s Copenhagen climate change summit – prevents Barack Obama from arriving at the talks without concrete evidence that America will do its bit to cut the emissions that cause global warming.
“Climate change has now become a household issue,” said Lisa Jackson, head of the Environmental Protection Agency (EPA), adding that the evidence of climate change was real and increasingly alarming. “This administration will not ignore science or the law any longer, nor will we ignore the responsibility we owe to our children and our grandchildren.”
The announcement gives the EPA a legal basis for capping emissions from major sources such as coal power plants, as well as cars. Jackson said she hoped it would help to spur a deal in Copenhagen.
Documents released early this week finally start to offer a glimpse into EPA thinking. Long story short: Climate hawks shouldn’t expect much from these upcoming regulations. They won’t be a substitute for the climate bill. Not even close.
Here’s the basic problem the EPA faces: The best way to reduce greenhouse gas emissions from stationary sources — primarily power plants — is to approach the situation holistically: shut down a bunch of dirty power plants, build a bunch of clean power plants, and push hard on efficiency to cover the cost differential and protect ratepayers. Legislation could have done that. EPA can’t. EPA can’t make anybody build anything.
EPA is forced by the structure of the Clean Air Act to tackle greenhouse gas emissions on a plant-by-plant basis, using what’s called a Best Available Control Technology (BACT) standard. The agency describes it as “a case-by-case decision that takes into account technical feasibility, cost, and other energy, environmental, and economic impacts.” Theoretically regulators can require anything, up to and including different combustion processes and even different fuels.
That BACT process works well enough for traditional air pollutants like sulfur dioxide or particulates, but for CO2 it’s … awkward. There’s no scrubber that will remove CO2 from smokestack gas. There are no existing means for incrementally ratcheting down CO2 emissions. Instead, the options for stationary sources tend to come in two flavors: modest and radical. There’s little in between. It puts EPA in a bind.
Director of Policy on Climate Will Leave, Her Goal Unmet
By JOHN M. BRODER
Published: January 24, 2011
WASHINGTON — Carol M. Browner, the White House coordinator for energy and climate change policy, will leave the administration shortly, officials confirmed Monday night. Her departure signals at least a temporary slowing of the ambitious environmental goals of President Obama’s first two years in the face of new Republican strength in Congress.
Ms. Browner, a former administrator of the Environmental Protection Agency, was charged with directing the administration’s effort to enact comprehensive legislation to reduce emissions of climate-altering gases and moving the country away from a dependence on dirty-burning fossil fuels. That effort foundered in Congress last year, and Mr. Obama has acknowledged that no major climate change legislation is likely to pass in the next two years.
No decision has been made on whether she would be replaced or if the position would simply disappear, a White House official said.
“She will stay on as long as necessary to ensure an orderly transition,” a White House official said. “Carol is confident that the mission of her office will remain critical to the president.”
News of her departure was first reported by Politico.
The environment
Heated but hollow
Congress embarks on a rhetorical debate about greenhouse gases
WHILE campaigning to become chairman of the Energy and Commerce Committee of the House of Representatives, Fred Upton, a Republican from Michigan, vowed that he would grill Lisa Jackson, the head of the Environmental Protection Agency (EPA), in front of his committee so often that she would need her own parking space on Capitol Hill. On February 9th Ms Jackson submitted to her first interrogation, about one of the Republican Party’s pet peeves: the EPA’s plan to restrict emissions of greenhouse gases from cars and factories by decree.
That plan has been a long time in the making. During the administration of George Bush junior several states, frustrated by the administration’s refusal to address global warming, sued the EPA. They argued that it was required to use its powers under the Clean Air Act, a law from the 1960s aimed first at smog and later acid rain, to declare carbon dioxide a threat to the environment and public health and regulate it accordingly. The case eventually made its way to the Supreme Court, which decided in 2007 that the EPA did indeed have the authority to do this. But the Bush administration, which maintained that restrictions on emissions would raise the price of energy and so hurt the economy while doing little to help the climate, managed to prevaricate for almost two years before passing the buck to Barack Obama and Ms Jackson.
Mr Obama had said repeatedly during his presidential campaign that it would be preferable for Congress to regulate greenhouse gases, but that if it failed to act, the EPA should not shirk its responsibilities. So even as Congress debated how to handle global warming in 2009 and 2010, the EPA began drawing up regulations of its own. Last year it issued new emissions standards for cars, and set out a timetable for rules on large stationary sources such as cement plants and refineries. Meanwhile, the Democrats’ proposed law curbing emissions, which had juddered through the House but stalled in the Senate, came to a complete halt when the Republicans took control of the House in November.