EPA and Courts Muscle Up on Climate as Congress Pusses Out

First there was Waxman-Markey, then there was Kerry-Lieberman. Pundits argued over whether there should be cap and trade or a carbon tax, or perhaps a carbon dividend, but they all pretty much agreed that there needed to be an official cost on carbon, and some sort of direction from the top on climate change. Slowly Democratic proposals for climate legislation were whittled away, watered down in attempts to play politics and win votes. It was the sort of I’ll see your nuclear plant and raise you a renewable energy credit politicking that has characterized the Democratic party for a while now and it was–surprise, surprise–ineffective. After giving away major concessions to keep cap and trade alive, including pollution credits that all but eliminated any benefit to be gained by such a system, the Dems hinted earlier this month that there was to be no climate legislation. Given the economy, the oil gusher, etc. efforts would instead be focused on an energy bill, one that addressed offshore drilling issues and moved the country away from fossil fuels and toward renewables.

The climate change camp was disappointed, but figured at least they’d get a good energy bill, and could fight for climate legislation next year. Not so fast. Yesterday, Senate Majority Leader Harry Reid (D-Nev.) conceded that talk of any such law would be delayed until the fall. Renewable energy industry groups, which were counting on the passage of a national renewable energy requirement (currently several states have renewable portfolio standards that require a percentage of utilities’ power be generated by renewable sources) to create jobs and stimulate the solar, wind and geothermal industries were pissed.

Denise Bode, CEO of the American Wind Energy Association, called the failure to pass an energy bill “an attack on every American worker and consumer.”

Reid seems to be thinking that by waiting until the fall, he could get climate legislation (and perhaps cap and trade) back into the bill, but with midterm elections coming up and the Democrats in danger of losing their majority in Congress, that sounds like a pipe dream. In the meantime, Reid said he would introduce a watered-down version of the bill next week. How much more watered down it could possibly get remains to be seen.

Some environmental activists saw the writing on the wall about climate legislation long ago and opted instead to focus their efforts on other branches of the government. A strengthening of the EPA’s rules on pollutants and greenhouse gases, for example, could deliver more immediate improvements. Vernice Miller-Travis, a consultant for The Lawyers’ Committee for Civil Rights Under Law, and co-author of a recent environmental justice report for The Committee, says she has been focusing on meeting with EPA officials to influence their rule-making, rather than targeting Congress. “Definitions for things like what constitutes hazardous solid waste are instrumental to how EPA enforces rules,” she says. “And if greenhouse gases and co-pollutants are appropriately included in Clean Air Act rule-making, those issues become part of the statutory process.

“Then no matter which administration is in place, or what happens with legislation, Clean Air rulemaking could enable the EPA to really drive process for reducing greenhouse gases and co-pollutants,” she explains. “And that would protect communities at the local level.”

Meanwhile, the judicial branch is getting involved as well. In what could prove to be an extremely influential case–Connecticut, et al. v. American Electric Power Co., et al.–Judge Peter Hall ruled in favor of the prosecution, which sought a court order for the utilities to reduce their greenhouse gas emissions. Hall stood behind the idea of taking legal action for the impacts of climate change, a strategy that has been defeated in the past because of a legal construct known as “the political question doctrine,” namely that the courts can’t rule in a way that essentially creates legislation or undermines a path the executive branch has taken. In In his 150-page ruling on the case, Hall wrote “The Supreme Court has stated, in the context of displacement of federal common law, that ‘Congress’s mere refusal to legislate … falls far short of an expression of legislative intent to supplant the existing common law in that area.’”

Hall also added, “Given the checks and balances among the three branches of our government, the judiciary can no more usurp executive and legislative prerogatives than it can decline to decide matters within its jurisdiction simply because such matters may have political ramifications.”

It’s great news that someone is taking up the charge in the absence of federal leadership, but the fact remains that despite having a Democratic President and a Democratic majority in both the House and the Senate, the Democratic party has failed to push anything through. Maybe this reaching across the aisle business isn’t such a great idea after all.

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