The U.S. Doesn’t Need Congress for Cophenhagan…for Politics or Policy

I’ve read mentions of EPA regulating GHG emissions before, but I hadn’t ever found a comprehensive explanation of what exactly EPA has the power to do.  Most articles and blogs dismiss EPA regulation as a second-best solution to legislation passed by Congress.  The only reason why most pundits will defend EPA regulation is that it will give the U.S. something, anything, to show for itself at talks to devise a Kyoto successor in Copenhagan.  I assumed this critique had economic grounds: Congress can pass cap-and-trade, but the best EPA can do is traditional and horribly inefficient command-and-control.

But according to a report from NYU Law School, that’s not really the case.  In fact, EPA could use is authority under the Clean Air Act (CAA) to establish a well functioning cap-and-trade system.  There a few problems in cases in which the CAA would force EPA to issue separate regulations outside of cap-and-trade (like automobile emissions, for instance.) Overall, though, a fine system could be worked out. 

What’s more, EPA doesn’t really have much choice in the matter.  The Supreme Court, in 2007’s Massachusetts vs. EPA, the Supreme Court narrowly ruled that GHG emissions are air pollutants that EPA must regulate.  The Bush administration (surprise, surprise) chose to ignore the ruling.  (The NYU report has all the dirt: Bush’s EPA was ready to issue its ruling in accordance with the court’s finding when Bush advisers literally forced the EPA head to retract the emails sent to the White House.  Bush advisers had been meeting with oil-industry officials, who convinced them to stall on complying with the court ruling.)  This April, two years after the court ruled and ten years (!!!!) after the case was first filed, the Obama EPA complied and began the path toward regulating GHGs.

Clearly, it would be outstanding if Congress could deliver an effective bill. The CAA wasn’t precisely designed for something as ambitious as confronting climate change in the world’s largest emitting country, and such ambiguity in EPA interpretations of policy will lead to a legal headache when the regulations are inevitably challenged in court.

But here’s the upside: the Obama administration can achieve more by bypassing Congress.  A bold claim?

First of all, the EPA won’t be subject to protectionist pressures in Congress. So we won’t get any carbon tariffs with the potential to start trade wars and to erk the Chinese so much that any chance of getting China on board at Copenhagan disappears. 

Second, EPA won’t be subject to farm-state interests that bloated the Waxman-Markey House bill with insanely generous and environmentally dubious offset programs attached with lax regulations under the auspices of the Dep’t of Agriculture.  But I didn’t really need to explain: why don’t we just start deciding, for time’s sake, that any time the farm states get really worked up, it means bad news for trade and/or the environment. 

Third, EPA can auction 100% of permits under its cap-and-trade.  (For anyone interested in how this doesn’t violate Congress’s sole power in raising taxes, check out the NYU report.)

So EPA can let Obama step up to the plate at Copenhagan, but he’ll have much more to show than a worst-case, last-ditch effort.  He can pressure more countries to do more, and better.  I’m not suggesting Congress should just give up– it will probably look better internationally to show that at least the House made an effort (however feeble.) I have to say, though, after reading dire reports on the ineffectiveness of Waxman-Markey and the depths to which the bill would fall in a Senate version (if one could even pass), that hearing of the EPA’s broad authority was truly excellent news.

Photo of Lisa Jackson, EPA Administrator, from US News.

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