Climate Legislation Update: Deploying the "Nuclear Option" Against the EPA?


EPA endangerment

Earlier this year Last year, the U.S. Environmental Protection Agency found under the Clean Air Act that greenhouse gases (GHGs) threaten the public health and welfare of the American people. Subsquently, the agency promulgated regulations that aim to limit the emissions of those gases, chiefly carbon dioxide. However, the threat of EPA GHG regulations was always seen by the Obama administration and the Congressional Democratic leadership as a stick ("environmental blackmail") that could be wielded to force Congress to enact a cap-and-trade carbon rationing scheme sometime this spring. Even so, getting that legislation through the Senate and the House was never going to be easy. After all, the House's Waxman-Markey rationing scheme was passed in June by a razor thin margin of 219 to 212 votes. The Massachusetts senatorial upset this week makes it even more unlikely that climate change legislation will be brought up, much less passed, this year.

So then what about the EPA regs? Sen. Lisa Murkowski (R-Alaska) may introduce a resolution of disapproval (the so-called nuclear option) against the EPA GHG regulations. Passage of such a resolution in both houses of Congress would mean that

… the rule may not take effect and the agency may issue no substantially similar rule without subsequent statutory authorization. If a rule is disapproved after going into effect, it is "treated as though [it] had never taken effect.

Admittedly, it's very unlikely that such a resolution would get past the Democratic leadership in Congress, but it would certainly put them on record as favoring regulations that would inevitably lead to higher energy prices. Wonder how that might go over with voters in November?

In any case, EPA GHG regulations will be tied up in litigation for quite some time.