An amendment Senator Murkowski (R-AK) is likely to introduce is getting some attention in climate policy circles. The measure—expected to be added to important legislation needed to raise the debt ceiling, due to be considered by the Senate this month—would strip the Environmental Protection Agency of much of its authority to regulate greenhouse gases (GHGs) during 2010. Despite the attention, I don’t think the amendment is at all likely to become law. Even if it did, it probably wouldn’t have much effect on what the EPA will do over the short term. I’m not even sure that the impetus behind it is a desire by Sen. Murkowski to block EPA regulation.
Before explaining why I think those things are true, let’s take a quick look at what the amendment would actually do. Sen. Murkowski hasn’t introduced it yet, but she introduced a similar measure to an environmental bill last fall. It was defeated. The new amendment will probably be very similar or identical. It will likely be very short, and do only one thing: remove the EPA’s authority to regulate GHGs from stationary sources under the Clean Air Act (CAA). It will only block this authority for one year, and it will not touch authority to regulate mobile sources.*
Practically, this wouldn’t have a big effect on EPA regulations. The EPA is only moving forward with mobile source regulations right now (at least publicly), having made its mobile source endangerment finding last month and plans to introduce fleet emissions standards in March. Nobody outside the agency knows for sure what the EPA will do with stationary source GHGs, assuming Congress does not do something first. In any case, a program is not likely to be in place before the end of 2010. One exception to this is the CAA permitting process (NSR and Title V)—but the EPA is also trying to restrict that process to big GHG emitters that already have to go through it for other pollutants. Even if this “tailoring” runs into trouble in the courts, it too would probably be able to survive 2010.
Sen. Murkowski has also made some noise about the recent GHG endangerment finding. She doesn’t like it and is apparently trying to get some legislation to block it. I don’t really understand this move, though—the debt ceiling amendment would leave mobile source authority to the EPA. That authority is meaningless without the endangerment finding (remember that it applies on its face only to mobile source GHG emissions, and is required for the EPA to regulate those sources).Congress has generally been OK with the EPA regulating mobile-source GHGs. None of the climate bills (as far as I know) supplant EPA regulation of mobile sources. Murkowski therefore seems to be making two separate moves, one aimed at EPA authority to regulate stationary-source GHGs, and the other aimed at authority to regulate mobile-source GHGs. It’s not clear whether this is a broadside attack on EPA authority cleverly broken in to two parts, each of which might be more likely to pass, or an alternative approach—maybe she would only push one option if the other failed.
Moreover, I don’t think the debt-ceiling amendment will become law. There are four reasons for this: first, it requires 60 votes to pass, like most other Senate measures. Sen. Murkowski would have to get every Republican and 10 Democrats to vote for the amendment. This isn’t totally implausible, but it won’t be easy. Moderate Democrats or supporters of one or the other climate proposals in the Senate might be convinced that giving Congress more time is a good idea. Most Democrats will oppose the amendment, though.
Second, even if Sen. Murkowski gets the amendment into the debt ceiling bill, that bill itself will have to pass the Senate. The last increase in the debt ceiling passed just before Christmas by a single vote, almost exactly along party lines. The Murkowski amendment would throw a giant spanner into that balance, with the possible result that the measure wouldn’t pass at all. Republicans would be torn between opposition to increasing the ceiling and support for the amendment, and Democrats the reverse. If the bill were to pass, the coalition voting for it would have to be very odd. I have a suspicion that this is the intended result of the amendment—it might be a poison pill for the debt ceiling increase, as much or more than a move aimed at the EPA. That’s reasonably clever, but it’s also dangerous. Republicans might get into trouble at the polls either for voting to increase the deficit or failing to block EPA regulations—when if they had kept the bills separate they could have had both votes on their record.
Third, any bill that did pass the Senate would have to go through consolidation with the corresponding House measure. I’m not an expert on legislative process, but I do know the House is less likely to include a Murkowski-style amendment.
Finally, even if all these other hurdles are passed, the president would have to sign the bill including the amendment. I don’t think he would do this—it would take away significant authority from the executive branch on an issue he has publicly claimed is important. It would also undermine U.S. international credibility on climate, which is currently based on the promise of EPA action in lieu of congressional moves. Congress surely does not have the 2/3 supermajority to overcome a veto.
Would such a veto trigger a Clinton-Gingrich-style standoff and potentially shut down the government? Maybe, but I don’t think so. The debt ceiling is important in the long term, but the government can operate without it. In 1995, Congress did not pass a budget, so the government could not spend money to operate. Here, it can operate, just not borrow. This could cause all kinds of problems, but it wouldn’t necessarily cause a shutdown. It would also be politically dangerous to risk any kind of shutdown during a war, and the 1995 experience is evidence that Congress would get the blame.
The difficulty of getting the Murkowski amendment through illustrates the problems faced by climate legislation generally. Since the CAA already gives the EPA authority and she is trying to take it away, all of the institutional and political forces that have made it tough to get a climate bill would work in the opposite direction.
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*Specifically, the September amendment would have denied funding to the EPA for any regulation of GHGs under the CAA except under §202(a) – mobile sources. It would also have overturned the Mass v. EPA finding that GHGs are CAA pollutants, again except under §202(a). This is weird, since there is no separate definition of pollutants in different sections of the CAA, but it’s not unprecedented for a term to mean two different things in the same statute. Congress has the power to define it differently. Both of these changes would expire after one year. The result would be that the EPA can’t use any part of the CAA except §202 to regulate GHGs for one year – in other words, no NAAQS, no NSPS, no permitting (and therefore no tailoring), no stationary-source regulation at all.
Nathan Richardson is a Visiting Scholar at RFF.
