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Yesterday, Senator Lisa Murkowski, R-AK, introduced a “disapproval resolution” that would block the endangerment finding for mobile-source greenhouse gases (GHGs) the EPA released last month. This move is different from the senator’s previous attempts to attach different legislation aimed at reducing EPA authority to regulate GHGs to other bills, most recently the debt ceiling increase currently before Congress (for more on those attempts, see my recent post). The most important substantive difference between the two measures is that the senator’s earlier legislation would have blocked EPA authority going forward to regulate stationary sources, while this resolution is aimed squarely at the steps the EPA has already taken to regulate mobile sources.
Here are some quick thoughts on what the resolution would do, and whether it is likely to pass.
Last month, the EPA issued an endangerment finding under Section 202 of the Clean Air Act (CAA). This allows (and requires) the EPA to regulate GHG emissions from vehicles, which it plans to do with fleet emissions standards starting in March (for more on what the endangerment finding does and does not do – see my earlier post on the topic). Sen. Murkowski’s resolution would essentially cancel the finding.
This is made possible by the Congressional Review Act, a 1996 law that gives Congress a 60-day window after new regulations are issued in which they can be overruled. Think of it like a reverse line-item veto: Congress gets to review some executive branch actions and decide whether to allow them. The analogy isn’t perfect, of course—the line item veto was ruled unconstitutional, for one thing. The joint resolutions required to cancel agency actions are also new legislation which the president must sign—Congress can’t act alone.
If the resolution were to pass and the president were to sign it, therefore, it would be as if the endangerment finding had never happened. As a result, the EPA would not be able to regulate GHGs from mobile sources. The EPA could, in principle, still regulate stationary sources under other provisions of the CAA, but a Congress that vetoed action on mobile sources would presumably do the same for stationary sources. Sen. Murkowski obviously believes this is a good thing, ostensibly because it allows Congress more time to enact its own climate legislation. Others, including Sen. Barbara Boxer, D-CA, oppose the resolution, claiming that it eviscerates important EPA authority. Boxer’s opinion is important, for reasons I’ll explain.
So will the resolution pass? I very much doubt it. I was very skeptical about the likelihood of Sen. Murkowski’s earlier attempts to block EPA GHG authority passing, and I’m skeptical for most of the same reasons here. There are four hurdles the resolution needs to pass to become law:
- It has to get enough votes to get out of committee (Environment and Public Works)
- It has to get enough votes to pass the Senate
- It (or something similar) has to pass the House
- The President has to sign it (or both houses have to override a veto)
I don’t think the bill is particularly likely to pass these hurdles. I might be wrong about that with respect to one or more of them, but it’s still very unlikely that it could pass all four.
At the first hurdle, Sen. Boxer’s opposition signals a tough fight in the committee she chairs. The second hurdle is substantially easier for this resolution than for Sen. Murkowski’s earlier moves, principally because only a 50-vote majority is needed to pass (CRA resolutions are filibuster-proof). Sen. Murkowski already has support from a few Democrats. It still may be difficult to get to 50 votes, but certainly not impossible. Of the four, this is probably the easiest for the resolution. Passing the House, with a larger Democratic majority, would be much harder.
Even if the resolution survived this gauntlet, however, I still don’t see any reason why the president would sign it and I doubt there are enough votes in either house to override a veto.
I will say that I am a little less certain that the resolution will fail than I was about Sen. Murkowski’s earlier attempt to amend the debt ceiling to restrict EPA authority. Not by a lot, but the fact that there is some Democratic support for the resolution in such a finely-balanced Senate makes it possible that it will pass there (assuming it isn’t killed in committee first).
As I said in my earlier post, I’m still not certain what Sen. Murkowski’s policy goals are given the two measures she has advanced recently. The earlier measure would have removed authority to regulate anything but mobile source GHGs, while this resolution removes only that authority. An increasingly plausible conclusion is that Sen. Murkowski simply opposes all EPA regulation of GHGs under the CAA. This might not be shocking, of course, but it does create a problem for climate legislation going forward. Neither the House or Senate climate bills discussed last year include provisions for mobile-source regulation. If Sen. Murkowski’s resolution prevails, and she is serious about action on climate, any new legislation will have to find a way to address mobile sources.
Nathan Richardson is a Visiting Scholar at RFF.
