OBAMA TO GO AROUND SENATE FOR CLIMATE CHANGE BILL?

Obama mulls cap-and-trade by decree
John Kemp (w/David Evans), April 14, 2009 (Reuters)

SUMMARY
The Obama administration could use the authority of the Environmental Protection Agency (EPA), under the legal dictates of the Clean Air Act (CAA), to enforce greenhouse gas (GhG) emissions reductions if it is blocked from passing comprehensive climate change legislation. A minority in the Senate, exercising the power of the filibuster, could block proposed legislation even if a majority in the House pass it and a majority in the Senate favor it.

According to Peter Orszag, White House Director of the Office of Management and the Budget (OMB), the threat of independent legal action by EPA attorneys would be the best leverage available to the administration to get legislation passed. The administration wants to cap GhGs and institute a trading system to facilitate the caps. Such legislation is expected to make it through the House with a significant but simple majority.

An effort to circumvent the filibuster obstacle by exercising reconciliation was recently blocked in the Senate. (See WHITE HOUSE STILL WANTS CLIMATE CHANGE FIGHT)

Orszag says that contrary to pronouncements by pundits and administration opponents, cap&trade legislation is not “dead” and the Obama people intend to up pressure on the recalcitrant members of the Senate with the threat of independent legal action.

click to enlarge

In the absence of legislative action by Congress, legal action would come from EPA. But the 2007 Supreme Court decision giving EPA the right to act was the result of a narrow, 5-to-4 vote. And it was limited, applying specifically to vehicle emissions. Using this decision to circumvent the Senate and institute controls on all GhGs could be seen by political opponents as controversial and by the court as an overstepping of the President’s authority.

The decision was, however, conclusive on the causal link between GhG emissions and global climate change and it hinted at the need for a gradual approach to reduce and eliminate them.

Observers believe the White House would prefer not being forced to use EPA and the CAA to control U.S. GhGs. But most also believe the Obama adminstration sees an urgent need for the U.S. to be part of the world’s effort to cut emissions and reverse climate change. The sense of urgency could be strong enough to risk legal action by EPA if there is no better option. A decision to do so would surely lead to further pivotal Supreme Court cases.

It's never been explained quite like this. From 8bubbles8joe via YouTube

COMMENTARY
The power of EPA through the CAA was affirmed in Massachusetts versus Environmental Protection Agency, a crucial 2007 Supreme Court decision that overruled the Bush administration’s contention that CAA does not give EPA the power to regulate GhGs. The Supreme Court decision said that if EPA found GhGs were harmful, CAA required it to regulate them.

The last refuge of the environment? (click to enlarge)

The Bush EPA refused to act on the decision but one of President Obama’s first moves was to order his EPA to get to work. The EPA published a finding in March that GhGs endanger human health by causing climate change. This gives it the right to issue regulations controlling them.

If the White House chooses to go through the EPA to establish GhG regulations, the move will be tested in court.

During the Bush years, environmentalists tied proposals up in the courts. There is no reason the process cannot be worked in the opposite direction by big emitters and big business.

The first legal struggle would contest EPA’s authority to address all GhGs instead of just vehicle emissions. That would require decisions by a district court, a circuit court of appeals and the Supreme Court. One, two or three more legal fights might come over the details of the EPA rules, all needing to go through the same three levels of courts.

Make that ALL emissions. (click to enlarge)

Each time, the decision will likely come down to the single vote of Ronald Reagan-appointed moderate Justice Anthony Kennedy, just as the original decision did. The nature of the White House scheme for emissions regulation will be crucial. If Kennedy sees it as severe, unwieldy and expensive, he would be likely to rule against it.

Will they decide the U.S. role in the global climate change fight? Kennedy is seated at the far left - a good sign? (click to enlarge)

The good news is that White House-designed climate change legislation is expected to be none of those things and, for that reason, could find compromise support in the Senate. Already the White House has hinted it might be willing to reduce President Obama’s call for auctioning 100% of the emissions allowances in the cap&trade plan.

Senator John McCain (R-Ariz), Obama’s opponent in last year’s race for the presidency, is on record as favoring a cap&trade response to climate change with a 60-to-70% auction of allowances. Getting Senator McCain to back climate change legislation, even if it means compromising on this element of the plan and alienating the most rigid and adamant of the President's environmentalist supporters, could be a turning point in the world’s climate change fight and the U.S. role in it.

It is unclear right now exactly how much opposition the President has within his own party. 26 Democrats voted to block the use of reconciliation. If that is indicative, the pundits are right and there really is little to no hope for climate change legislation. But it is likely much of the opposition to reconciliation was on the narrow parliamentary point and will not extend to moderate climate change legislation.

Opponents on the Republican side have already begun trumpeting claims that the White House proposal will drive up ratepayer utility bills without also mentioning the bill includes revenues from the auction that will be returned to ratepayers to neutralize their costs. The White House expects to soon hear a cacophony of condemnations of the climate change legislation, describing it as (1) the biggest tax increase in history, (2) the biggest government giveaway in history, (3) Wall Street welfare, (4) corporate welfare, and (5) welfare for electricity wasters.

But a compromise bill might still find 60 votes if it (1) promises real, if mitigated, action on climate change, (2) wins endorsement by reasonable authorities as none of the bad things recalcitrant, climate change-denying conservatives claim it is and (3) does not alienate Senators up for re-election in Midwestern and Western states. It will simply take a lot of wheeling and dealing.

Whoever decides should know about this. (click to learn more)

QUOTES
- Kemp: “…the 2007 Supreme Court decision was reached by a narrowly divided court split along the usual ideological lines. The court's liberal wing (Justices Stevens, Souter, Ginsberg and Breyer) received the crucial fifth vote supporting EPA regulation from swing voter Justice Kennedy, and were strongly opposed by the conservative bloc (Roberts, Scalia, Thomas and Alito)…”

From RepMarkey via YouTube

- Justice Stevens, in the Supreme Court’s decision: "…a well documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related…agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop…"
- Kemp: “The sweeping declarations and incrementalist approach favoured by Stevens could lay the basis for a much broader reading of EPA authority.”
- Carol Browner, White House coordinator of energy and climate change policy: "There are things that can be done with legislation that won't quite work within the existing law…"