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Food Fight! Greenhouse Gas Regulation in 2011

Posted in Legislation, Regulatory, Renewable Energy, Sustainable Business

For most of the last two years it has been easy to write about climate change legislation. Two years ago, Washington State seemed poised to adopt its own version of a cap-and-trade program as part of the Western Climate Initiative. But that legislation faltered, because it was not well developed and state legislators were bombarded by the argument that it was foolhardy for Washington to adopt a cap-and-trade program that only applied to Washington when surely the Obama Administration would get national climate change legislation through Congress. Then the U.S. House of Representatives did pass a climate change bill – something over 1,000 pages, with all the baggage and criticism attached to it that a bill that long carries. But the Obama Administration passed too many 1,000-page bills, and by last summer it became clear that the American public wasn’t going to tolerate any more for a while. So cap-and-trade was declared dead. In the current recession, with Governor Gregoire putting a hold on almost all new regulation, there is no appetite to revisit a Washington based cap-and-trade bill.

But of course climate change remains an issue, and it remains a cause of concern to the Obama Administration. In 2007, in a case called Massachusetts v. EPA, the United States Supreme Court held that under the federal Clean Air Act the EPA was required to determine whether greenhouse gases created a danger to the public, and if it made a finding of endangerment, to regulate those gases. For the remainder of the Bush Administration it would be fair to say that EPA’s response to the Massachusetts v. EPA decision was glacial. On December 7, 2009, however, the EPA made the finding of endangerment, which then led to the EPA being required to develop greenhouse gas regulations under the Clean Air Act. And indeed, because EPA has delegated the actual Clean Air Act permitting authority to the states in most cases, it meant that the EPA was required to make the states apply the greenhouse gas rules.

Of course, there are a lot of people, including many business interests and many Congressmen now in positions of power in the Republican controlled House of Representatives, who believe greenhouse gas regulation is entirely wrong-headed. The result is best described as an old fashioned food fight, with parties hurling lawsuits and investigations and threats.

For instance, seventeen states, the U.S. Chamber of Commerce and the National Association of Manufacturers have asked the U.S. Circuit Court of Appeals for the District of Columbia to stay EPA implementation of any new regulations of greenhouse gases. On the other side of that litigation are the EPA, and twenty states and thirteen environmental groups who have lined up on its side.

At the same time that seventeen states are trying to overturn the new regulations, EPA has moved forward to requiring states to implement the regulations. All but Texas, even the states that are suing for the injunction against EPA, have agreed that unless a court enjoins the regulations, they will implement the regulations as required. But Texas has refused – so EPA has filed suit to take back Clean Air Act authority from Texas. That suit proceeds apace.

And then there is Congress. There will undoubtedly be moves within the House of Representatives to amend the Clean Air Act to remove the provisions that led to the Supreme Court decision in Massachusetts v. EPA. Although that legislation could pass the House, it is unlikely to make it through the Senate, and would undoubtedly be vetoed by President Obama. But that is not Congress’s only opportunity to thwart EPA greenhouse gas regulations. There will undoubtedly be an effort to cut EPA’s budget to make it impossible for EPA to act. And there will undoubtedly be hearings in the House, exploring whether climate change is real and whether climate scientists are frauds. EPA leadership may literally find so much of their time taken up by testifying in front of various hostile committees in the House that they have no time to actually regulate.

We can’t predict where all this will end up. It is likely to result in far more rhetoric than actual movement in any direction for the immediate future. It will be one of a growing list of areas where if the American people watch their government in action with distaste, that will be understandable. If something happens, we will keep you informed.