Now that health-care reform has passed—and financial reform is moving along—the Senate’s fight over cap-and-trade legislation is just around the corner. Yet obscured in the debate is the fact that the U.S. already has a law giving the Environmental Protection Agency the responsibility to regulate greenhouse emissions. It’s called the Clean Air Act, and it’s been around since 1963.
Under the current version of the act, which has been amended significantly since passage, the EPA is required to control “any air pollutant” emanating from a motor vehicle that contributes to “air pollution which may reasonably be anticipated to endanger public health or welfare.” Enforcing this is not optional; indeed, the Supreme Court ruled in 2007 that the Clean Air Act requires the EPA to regulate greenhouse-gas emissions, given their contribution to climate change. To comply, the EPA has adopted regulations controlling car emissions that will require car companies’ fleets to average 35.5 miles per gallon by 2016. Additional regulations controlling emissions from power plants are expected shortly.
As one would expect, this approach has provoked its share of grievances. Senator Lisa Murkowski is attempting to pass a resolution that would strip the EPA of its authority to regulate greenhouse gasses. The House and President Obama will likely sink the effort, but Murkowski has a kernel of a point. EPA regulation is a fairly unsubtle way of regulating emissions; it fails to put a price on emissions, for one, which a carbon tax and a cap-and-trade system would both do. All else being equal, a more complex and carefully crafted emissions control law would be preferable.
But the Senate seems to have little interest in passing such a law. Although the Waxman-Markey cap and trade bill passed the House last summer, the equivalent proposal’s sponsors in the Senate—John Kerry and Barbara Boxer—are still trying to negotiate a package capable of breaking a filibuster. Republican Lindsey Graham, who has been talking with Kerry and Boxer about cap and trade, has said that he thinks a bill will be hard to pass after the health- care battle, and his colleague Olympia Snowe, the most liberal Republican in the Senate, agrees. What’s more, the content of the Senate bill is likely to be a disappointment. From the looks of it now, the bill will not even have a real cap on carbon emissions, only limiting them for utilities and focusing instead on providing funds for alternative energy development.
There does exist an alternative bill, proposed by Senator Maria Cantwell, which would auction off a certain number of emissions permits and distribute the proceeds to households to compensate for higher energy costs. While certainly better on policy terms than what the Kerry-Boxer bill looks to be—not least because Cantwell’s bill appears capable of passing through budget reconciliation processes that require only 50 votes plus the vice president—the chances for passage are questionable. There are enough Democratic Senators from coal-producing or manufacturing-heavy states to make gaining 50 votes seem questionable, and while Cantwell does have a Republican cosponsor in Susan Collins, it’s doubtful that GOP support will stick. There was considerable Republican enthusiasm about the Healthy Americans Act, an alternative health-care reform proposal spearheaded by Senator Ron Wyden, but its GOP cosponsors abandoned many of its provisions—such as a mandate requiring individuals buy insurance—when the health-care reform debate got fully underway. When push comes to shove, I doubt Collins and other Republicans would be willing to actually vote for a proposal as robust as Cantwell’s.
Although these Senate efforts should by no means be abandoned, the Obama administration should start looking for other ways to implement carbon pricing and other greenhouse gas regulations. The Columbia Law School’s Center for Climate Change Law has proposed one of the more promising ideas: have the EPA set up a cap-and-trade system on its own.
The details are technical, but the Clean Air Act, in addition to mandating the regulation of greenhouse gases from cars and power plants, allows the EPA to regulate emissions that are endangering public health in foreign countries. Specifically, it allows the EPA to direct states to set greenhouse emissions caps and encourages the states to set up a system among themselves whereby allowances granted one state can be traded for those in another. The effect would be a cap-and-trade system, albeit a messy one.
Of course, a permanent solution, along the lines of Kerry and Boxer’s bill or Cantwell’s, is still needed. EPA regulations can be overturned by new administrations, and the media reaction to implementing restrictions of this magnitude without Congressional input would be fiery, to say the least. But allowing climate change to continue apace while the Senate dithers is not an option. Letting the EPA take over cap-and-trade may be messy, but it’s certainly preferable to inaction.
Dylan R. Matthews ’12, a Crimson editorial editor, is a social studies concentrator in Kirkland House. His column appears on alternate Wednesdays.
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