Legislators intent on blocking the EPA from controlling CO2 emissions are fishing around for a coalition-building bill that can gain traction
By Elizabeth McGowan
WASHINGTON—Thus far, Republicans and coal state Democrats intent on barring the Environmental Protection Agency from regulating carbon pollution have served up at least half a dozen flavors of legislation.
And the conservation community eagle-eyeing this 112th Congress has declared all six of them equally odious.
One of the measures — a draft bill introduced Feb. 2 by Republicans Rep. Fred Upton of Michigan in the House and Sen. Jim Inhofe of Oklahoma in the Senate — is undergoing its initial public airing this morning before a House subpanel.
EPA Administrator Lisa Jackson is the first of the 15 witnesses scheduled to testify at the hearing chaired by Rep. Ed Whitfield, R-Ky., of the Energy and Commerce Subcommittee on Energy and Power. What’s called the "Energy Tax Prevention Act of 2011" will be in the spotlight.
Upton, the newly named chair of the House Energy and Commerce Committee, and Inhofe, ranking member of the Senate Environment and Public Works Committee, have designs on permanently halting Jackson's agency from reining in heat-trapping gases from large stationary sources such as power plants and industrial facilities.
Right now, legislators intent on blocking the EPA from using the Clean Air Act to control carbon dioxide emissions are fishing around for a coalition-building bill that can gain traction.
Two other possibilities floating around now are separate proposals from Sens. Jay Rockefeller, D-W.Va., and John Barrasso, R-Wyo. Both senators introduced their bills Jan. 31.
Rockefeller is again backing a less-harsh effort to halt EPA action for two years, while Barrasso is bullish on what's considered the most draconian measure. His "Defending America’s Affordable Energy and Jobs Act" would block the EPA and any other part of the federal government from using any existing environmental statute — such as the Clean Water Act or the Endangered Species Act — to control carbon.
"All these bills are based on a pair of big lies," said David Doniger, policy director of the climate center at the Natural Resources Defense Council.
"The first is that EPA is engaged in an unconstitutional power grab trying to regulate that which it has been unable to legislate. No, EPA is doing its job under the Clean Air Act, a law enacted by Congress, which — as the Supreme Court has found — directs EPA to act when science demonstrates that pollutants endanger our health and welfare.
"The second big lie is that EPA's modest plan for curbing dangerous carbon pollution will kill millions of jobs and poses a significant threat to job creation and economic recovery," he continued. "EPA is legally prohibited from making businesses take steps that are too costly or would hurt the economy. Clean Air Act safeguards have to be both achievable and affordable.".
What's Up with Upton and Barrasso?
Granted, Capitol Hill veterans are aware that some of these bills are theater with the intent of making Rockefeller's two-year delay somewhat enticing.
And nobody appears fazed by Inhofe's hyperbole. The vocal climate denier, after all, has labeled global warming "the greatest hoax ever perpetrated on the American people."
However, observers profess to being somewhat shocked that Upton and Barrasso — generally categorized as moderate Republicans — are playing such leading roles on the EPA-loathing stage.
Close to two years ago, Upton praised wind energy as an economic engine for southwest Michigan.
"Climate change is a serious problem that necessitates serious solutions," he said in an interview in 2009. "Everything must be on the table particularly renewable sources of energy like wind and solar, nuclear power and clean coal technologies."
As a newly appointed senator in 2007, Barrasso said Washington was failing to read the handwriting on the wall by falling pathetically behind on a coherent energy picture.
"The energy debate of our generation is carbon. Period. You can agree or disagree with global warming theories, but no one can wish the issue away," he told attendees at a Wyoming energy and climate summit. "And the public policy debate about carbon has dramatic effects on Wyoming’s future—our state, our communities, our jobs, our families. Period."
However, moderate Republicans have become an endangered species inside the Beltway, especially after a brutal midterm election heavily influenced by a tea party movement that rewarded ideological purity. Barrasso and Upton are also fully aware that anti-regulatory fervor is reaching a fever pitch in the GOP.
As well, Upton knew he would have to tack to the right to tamp down criticism from the likes of ultra-conservative Rep. Joe Barton. The outspoken Texan, the former ranking member of the energy committee, was "term-limited" out from taking the leadership role when the GOP gained a House majority.
Other tea party favorites such as radio commentator Rush Limbaugh and Fox News broadcaster Glenn Beck also were questioning Upton’s bona fides.
LCV Tracking Upton and Barrasso
To highlight Upton's latest "flip-flops" on energy issues, the League of Conservation Voters has launched a website to keep the congressman accountable.
"It’s really amazing what campaigning for and winning a title like chairman can do to a 24-year veteran of Congress, because Chairman Upton is totally unrecognizable to the congressman who has earned the 12th highest LCV lifetime environmental score among Republicans in the House," said Gene Karpinski, president of the nonprofit advocacy organization. "Representative Upton compared to Chairman Upton is like Dr. Jekyll and Mr. Hyde."
The site includes an "annotated" version of Upton's Wall Street Journal op-ed, where scrolling over the print reveals misleading statements in the article.
"With his new chairmanship, Chairman Upton is leading efforts to block, weaken, or delay the continued implementation of necessary public health and environmental protections," Karpinski said. "UptonUpdates.com will continue to shine a light on Chairman Upton’s efforts to protect polluter profits at the expense of public health."
In fairness, LCV is also taking Barrasso to task for what the nonprofit is calling bogus claims the senator made in the press release announcing his bill.
For instance, Barrasso said: "It's time for the administration to face the facts: Americans rejected cap and trade because they know it means higher energy prices and lost jobs."
But LCV counters that polling shows a strong majority of Americans support EPA carbon regulation. Comprehensive energy and climate legislation was blocked by a minority of senators in the pocket of Big Oil, LCV says.
Barrasso also claimed that his bill will "shrink Washington's job-crushing agenda and grow America's economy.”
However, LCV research shows that the Clean Air Act has a proven track record of curbing pollution while spurring innovation and creating jobs. A study released this week by Boston-based Ceres, a coalition of environmentalists and institutional investors, found that EPA's pending greenhouse gas rules could create as many as 1.5 million jobs over five years.
Some Senators Must Tread Carefully
Though several prognosticators predict that a bill along the lines of what Upton is proposing could pass in the House, Doniger of the NRDC is a naysayer. He worked for the EPA in the 1990s during the Clinton administration.
"I don't think the Upton bill will pass in the House," he said, adding that it will have a "bad smell about it" in the public opinion polls that support the EPA's use of the Clean Air Act.
It's anybody's guess whether Senate Majority Leader Mitch McConnell of Kentucky has the wherewithal to garner enough votes in the upper chamber. Although President Obama has previously said he would veto this type of legislation, it's difficult to tell if either chamber has the votes to override it.
Democratic senators such as Barbara Boxer of California, who won re-election to a fourth term last November, are at liberty to lambaste legislative efforts to hamstring the EPA's authority.
"Bipartisan environmental laws are now under attack," the chairwoman of the Environment and Public Works Committee said after Inhofe and Upton revealed their intentions. "EPA's common-sense steps to address carbon pollution follow the law and the Supreme Court decision that the agency must consider this threat. Congress should not turn its back on the American people by prohibiting EPA from doing its job to address carbon pollution."
Five other fellow committee members joined her in issuing pro-EPA statements. They include Sen. Bernie Sanders, an independent from Vermont, as well as Democratic Sens. Frank Lautenberg of New Jersey, Sheldon Whitehouse of Rhode Island, Tom Udall of New Mexico and Ben Cardin of Maryland.
Even though several of those senators are up for re-election in 2012, their seats are likely safe. However, Democratic senators from coal-burning, swing states up for re-election in 2012 are taking a more cautious approach toward this type of legislation. For instance, Washington insiders say trackers should watch senators such as Amy Klobuchar of Minnesota, who was recently replaced on the environment committee, Sherrod Brown of Ohio and Claire McCaskill of Missouri.
Where EPA Stands Now
Congressional Republicans and lobbyists such as Joshua Zive of Bracewell & Guiliani repeatedly predict that the EPA’s efforts to control emissions of greenhouse gases and other pollutants at the utility level alone will cause a regulatory "train wreck."
But environmentalists call that metaphor a scare tactic. They counter that having all the trains pull into the station simultaneously simply makes it easier to transfer from one line to another.
A Supreme Court ruling in April 2007, Massachusetts v. EPA, gave the agency authority to treat greenhouse gases as a pollutant.
All 50 states are now expected to comply with the tailoring rule that stemmed from that ruling and kicked in Jan. 2. That first phase is geared for new or modified coal-fired electricity plants, factories and cement production facilities that emit at least 100,000 metric tons of carbon dioxide and other greenhouse gases annually. It requires states to determine if these stationary emitters can qualify for federal permits.
Last December, agency authorities announced that this year they will issue proposed scientifically based performance standards for two sectors responsible for about two-thirds of greenhouse gases emitted from stationary sources. The timeline calls for final standards for new and modified utilities to be issued by May 2012 and for oil refineries by November 2012.
Rockefeller Seems Tame in Comparison
When compared to the other two bills, Rockefeller's "EPA Stationary Source Regulations Delay Act" seems quite tame. He reintroduced it Jan. 31 after it faded away in last year's lame-duck session.
In a nutshell, the Democrat from coal-rich West Virginia wants the EPA to delay deploying the Clean Air Act to regulate carbon dioxide and other heat-trapping gases from electric utilities, oil refiners and other large-scale stationary emitters for two years.
The newest conservative Democratic co-sponsor of Rockefeller's measure is fellow West Virginia Sen. Joe Manchin. The former governor was elected to fill the vacancy left when Sen. Robert Byrd died in late June at age 92. Other Democrats on board are Sens. Kent Conrad of North Dakota, Tim Johnson of South Dakota, Claire McCaskill of Missouri, Ben Nelson of Nebraska and Jim Webb of Virginia.
"Now is the time to encourage companies to invest in new technologies and create jobs, and we need a system that gives major employers the framework to do so and to succeed," Rockefeller, who chairs the Commerce, Science and Transportation Committee, said via news release.
"We must give Congress enough time to consider a comprehensive energy bill to develop the clean coal technologies we need and reduce our dependence on foreign oil, protect West Virginia and improve our environment."
Environmentalists Question Rockefeller’s Motive
Rockefeller echoed those comments but put a harsher spin on them Feb. 4 when he told the West Virginia Coal Association that energy reform policy won't disappear after the demise of a cap-and-trade climate change bill.
According to news accounts of his address, Rockefeller stressed that the industry needs to step it up on the cleaner coal front.
"I’m fighting hard to suspend EPA regulations on greenhouse gas emissions for two years, not for the sake of EPA-bashing," he's quoted as saying in Greenwire, "but specifically because we need time to move forward with a major new program on carbon capture and sequestration and we need a serious seat at the table for any other proposals on climate change."
However, green groups point out that the American Clean Energy and Security Act that the House passed in 2009 included generous allotments for carbon capture and storage technology. And, the Senate didn't even vote on the bill — partly because of objections from Rockefeller.
Environmentalists emphasize that tactics such as two-year delays or one-year funding riders are dangerous because they can be robotically extended as the opportunity for energy policy peters out.
"These short-term delays are like getting roaches in your house," Doniger said. "Once they get into legislation, it’s very hard to get them out."
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