The U.S. Climate Policy Race: Legislate or Regulate

by Bill Chameides | March 25th, 2009
posted by Erica Rowell (Editor)

Permalink | 4 comments

It’s the quintessential race between the tortoise and the hare, and the tortoise looks to be in the lead.

One of eight industrialized nations collectively known as the Group of Eight, the United States has the dubious distinction of being the only G8 country without a comprehensive national policy on climate change. The presumption has been that all that will change with the Obama administration.

America has two options for implementing a national climate policy:

  1. a comprehensive climate bill that cuts through red tape and sets limits on total greenhouse gas emissions in one fell swoop, or
  2. piecemeal regulations promulgated by the Environmental Protection Agency through a byzantine rule-making process set forth in the Clean Air Act (CAA). 

Let’s see how each is progressing.

Climate Legislation

Many climate change prognosticators have been assuming climate legislation would be on a fast track to passage in this Congress. And with good reason:

  • the president ran on a plank that included enactment of a cap-and-trade bill to ratchet down U.S. greenhouse emissions in the coming decades;
  • he and his advisers have expressed their expectations that a bill will be forthcoming; and
  • President Obama even placed the presumed revenues from the auction of emission allowances from a cap-and-trade system in the budget resolution [pdf] he sent to Congress.

Consistent with the presumption of passage is the fact that both houses of Congress have climate bills working their way through committees with promises that they will reach their respective floors soon for debate and vote. In a race with EPA regulations, climate legislation would have to be viewed as the favored hare.

Stalled Progress?

But I don’t advise holding your breath awaiting passage of a climate bill. The devil, as they say, is in the details.

There’s a wide gulf between having a consensus that climate legislation is needed (even that a cap-and-trade system needs to be enacted) and cobbling together that consensus on specifics. And perhaps because of concerns with rocking the economic boat at a time of fiscal uncertainty, it’s pretty clear that the votes to pass a climate bill in this 111th Congress are just not there yet in either chamber of Congress.

If you caught the president’s press conference last night you’d have heard from a reporter that Congressional Democrats are cutting the cap-and-trade provisions from the administration’s budget proposals. (Read a transcript of last night’s address.) The Wall Street Journal reported this morning that “it appeared that climate-change legislation wouldn’t be on a fast track in either the House or Senate resolution.” In short, the hare is lagging.

EPA Regulations

But while climate legislation in Congress looks uncertain, regulation of carbon dioxide (CO2) emissions by EPA appears to be moving forward – like the tortoise, progress is slow but steady after a rather lazy start.

The whole thing got set in motion back in April 2007 when the Supreme Court ruled in Massachusetts vs EPA that EPA has the responsibility to regulate CO2 emissions under the authority of the CAA if the agency found that such emissions posed a threat to human health and welfare.

Not surprisingly, the Bush administration chose not to move forward on regulations even though EPA staffers reportedly prepared a report finding that CO2 did indeed threaten health and welfare. But things changed with the swearing in of Lisa Jackson, Obama’s choice to head up EPA. Shortly after taking the helm, she announced that the agency would undertake an assessment of whether CO2 should be regulated under the CAA. It is now rumored that a draft report with an “endangerment finding” (i.e., that CO2 is a health and welfare threat) has been delivered to the White House and will be released to the public sometime next month.

Of course, release of the report will not lead to CO2 cuts any time soon. The tortoise is a long way to the finish line. After the report is out, there will be a call for public comments before the endangerment finding is promulgated. Then this will be followed by many months (probably a year or more) of rule-making with proposals and public comments before actual regulations go into effect.

But while the tortoise is far from the finish line, it continues to move on down the line. Even if Congress can’t get its act together and pass much needed legislation, it appears that we will have some kind of climate policy eventually.

Slow but Steady Progress Is Heartening, Still …

Getting EPA into the act is better than nothing, but regulations won’t be as effective as strong federal legislation. The kinds of regulations available to EPA are limited. Cap and trade, for instance, will almost certainly be off the table; in 2008 the U.S. Court of Appeals for the D.C. Circuit ruled in North Carolina vs. EPA that setting up such mechanisms exceeded the agency’s authority. And it’s unclear if EPA regulations without federal legislation will send the signal to the international community that we are sufficiently committed to a new, strong international agreement on climate.

It’s a strange race. It’s very American to root for the underdog (think America in the Revolutionary War or Rocky). But in this case, those who believe that our nation needs a comprehensive climate policy may prefer playing it safe and rooting for both the tortoise and the hare.

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  1. CTF
    Mar 26, 2009

    While I agree that we need comprehensive climate change legislation, I’m not willing to settle for a flawed cap and trade scheme. Congress needs to look at a revenue-neutral carbon tax (like the one Rep. Larson has introduced) that would significantly reduce emissions, incentivize climate-friendly technology and return the revenue to the people. As more and more leading scientists, economists and opinion leaders are lining up being a carbon tax, it’s almost irresponsible not to at least include it in the conversation.

    • Bill Chameides
      Mar 27, 2009

      CTF: Fair enough.

  2. Daniel Wedgewood
    Mar 25, 2009

    Dr. Chameides, At a fundamental level, aren’t legislation and regulation the same thing? They both are rules by the government telling the populace and businesses how they need to behave in certain respects (i.e. those areas that affect the climate). Isn’t is possible for non-government agencies to come up with their own plans for doing the same thing? For instance, in software development, a huge movement is open source software. Couldn’t there be a “global climate protection” movement? And like open source software, couldn’t it rival the big commercial interests (governments are typically very economically orientated)? Dan

    • Bill Chameides
      Mar 28, 2009

      Dan – Yes, they are kind of the same. As used here: Regulate = using the Clean Air Act to control CO2 using a command and control approach. Legislate = developing a new mode of controlling CO2, potentially using market-based tools instead of a command and control approach. Non-governmental approaches would be great. But will they work?

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