The Phoenix is a mythological bird that burns to death only to arise from the ashes reborn to live anew. When the U.S. Senate Majority Leader announced in July that the Senate did not have enough votes to pass comprehensive climate and energy legislation, the conventional wisdom in Washington was that this issue was dead for this year and perhaps for good. I would like to offer another perspective and explain why I believe that a comprehensive climate and energy bill may rise from the ashes and be enacted into law before the end of this year.
In my opinion, there are three powerful forces that could unite and fuse together the 60 votes necessary to report a climate and energy bill out of the Senate, reconcile it with the House and send it to the President for signature: (1) the EPA Tailoring Rule, (2) the Renewable Energy Standard and (3) the Lame Duck Congress. Let’s look at them one at a time.
The Tailoring Rule has one thing going for it: nobody likes it. Even EPA has stated that new legislation with a cap on carbon, combined with a market based program of tradable allowances and offsets, would be the most cost effective way to reduce greenhouse gases. So, even the agency that promulgated the Tailoring Rule does not favor its heavy handed, inflexible, regulatory approach. But the Clean Air Act is the law-of-the-land, the Supreme Court has ruled that greenhouse gases are pollutants, and EPA has issued an Endangerment Finding concluding such gases are a serious threat to human health and the environment.
The Endangerment Finding is currently subject to a raft of lawsuits challenging its scientific basis. Initially these challenges were emboldened by the so-called Climategate controversy that alleged scientific misconduct by climate scientists at the University of East Anglia. However three recent independent investigations have upheld the scientific integrity of the University’s research and have confirmed the scientific consensus “that global warming is happening and is induced by human activity.” This conclusion reinforces the underlying science of the Intergovernmental Panel on Climate Change (IPCC), upon which the Endangerment Finding is largely based. I seriously doubt that the courts will second-guess the judgment of the international scientific community on whether greenhouse gases pose risks to the environment.
The Tailoring Rule itself will be subject to lawsuits, but the only major legal issue seems to be that EPA tried to be more reasonable than may be allowed under the law. In order to avoid absurd results and impossible administrative burdens, the agency took a one-step-at-a-time approach to phase-in greenhouse gas controls starting with the largest sources first (those emitting more than 75,000-100,000 tons CO2e per year). Some argue that this is not allowed under the Clean Air Act which specifies that the requirements must be applied to all sources of pollution greater than 100 to 250 tons per year. If those thresholds were applied to greenhouse gases, tens of thousands of new small sources would be regulated including residential units, business establishments, schools and hospitals. The courts may decide that the Clean Air Act does not give EPA the legal authority to phase in the requirements as they intend. However, the likely result of such a decision would be to force the agency to immediately regulate the smaller sources as well, in spite of the absurd results and impossible administrative burden that would be caused. The challengers to the Tailoring Rule should be careful about what they ask for.
While the U.S. Congress could pass legislation that would void or postpone the application of either the Endangerment Finding or the Tailoring Rule, the first attempt to do so did not attract enough votes to even get out of the Senate let alone pass the House or override a Presidential veto. It is very clear that unless the Congress enacts comprehensive legislation that places limits on carbon emissions, the Administration will oppose any attempt to limit the EPA’s authority and the Tailoring Rule, and the full force of the Clean Air Act will be brought to bear on emissions of greenhouse gases.
Let’s turn now to the second factor in play, the Renewable Energy Standard or the lack thereof. A Renewable Energy Standard, which would require an increasing percentage of electricity to come from renewable sources, also has one thing going for it: nearly everybody likes it. The House of Representatives included one in the Waxman-Markey legislation that passed last year. The Senate Energy and Natural Resources Committee also passed a Renewable Energy Standard with strong bipartisan support, a rare commodity in Washington these days. However, the Senate’s current scaled down energy bill will not include this Standard or any other significant incentives for renewable energy sources. The reasons being given are lack of votes and lack of time.
Time is short because the Senate started late. It certainly will be difficult to get things done with the Congress closed in August for summer vacations and again in October for election campaigning. However, the crisis in the Gulf of Mexico provides a daily reminder to the American people of the terrible costs of our near exclusive dependence on oil and other fossil fuels. If there ever was a time to move forward legislation that would stimulate the development of alternative, renewable energy sources, that time is now.
The renewable energy lobbyists representing the solar, wind, geothermal and biomass industries believe there is considerable support for a Renewable Energy Standard and they are increasing their efforts to amass the necessary votes on Capitol Hill. SWANA will add its voice to this effort to assure that landfill gas and waste-to-energy are recognized as renewable energy in any legislation considered.
Some in the Congress may be reluctant to put forward a Renewable Energy Standard at this time in order to avoid a messy floor fight right before the November elections. Also if there are many floor amendments, there simply may not be enough time to move comprehensive legislation through. However, after the election, the politics and timing will change considerably.
Historically, a new President’s party loses seats in the Congress in the mid-term election of his first term. Even if they hold both Houses in November (which is certainly not a foregone conclusion), the Democratic majority, if it exists at all, is likely to be much slimmer in the new Congress in January. Therefore, it will be very difficult, if not impossible, for them to pass any complex or controversial legislation for as long as a two year period. A Lame Duck session in November and December may be the last chance to accomplish anything.
The political situation during Lame Duck is very unique. Those that lost the election have nothing more to lose. The survivors may see this period as fleeting opportunity to advance some of the important pieces of their legislative agenda. With the Tailoring Rule breathing down their necks and the renewable energy lobbyists banging on their doors, a Lame Duck Congress just may be persuaded to serve up a Phoenix as a December surprise.