If The Congress Won't Do It, The EPA Will

Harry Reid is signaling that health care and financial regulatory reform will take precedence in the Senate over the climate change bill, which could push the legislation into next year. The problem with that is the Copenhagen conference coming up in December, and the need for the US to bring something tangible to the table if there is any hope for an agreement. Indeed, the Europeans are already angry at the US approach, and not having some movement on the climate in hand will probably kill it completely. So the Administration has taken the law into their own hands, as allowable under the Supreme Court mandate to regulate greenhouse gas emissions.

The Obama administration on Tuesday formally proposed new fuel efficiency standards for cars and trucks, a move that signals the first federal limits on greenhouse-gas pollution.

In May, President Obama announced in a Rose Garden ceremony that cars would be held to a higher environmental standard. On Tuesday, officials filled in the details, linking fuel economy to emissions from vehicles.

The net effect would be to require manufacturers to ratchet up fuel economy 5 percent per year. In 2016, new cars and trucks would have to achieve an average rating of 35.5 miles per gallon. Cars currently must average 27.5 miles per gallon; light trucks must average 23.1 miles per gallon.

If this is any indication, it's only a first step, leading to other command-and-control measures from the EPA and other regulatory agencies in the absence of a climate deal from Congress. Power plants, one presumes, would be next. In fact, they've already started revising the rules on waste discharges from coal plants.

It's probably not the best practice, but under the current gridlock, it's the only tool available to the Administration. So members of Congress, particularly Republicans, have a choice to make. Legislation or regulation?

Polluting industries certainly didn't give up the fight against legislation in the face of regulation, and they'll continue to fight tooth and nail against the regulation in an attempt to run out the clock and maximize profits. David Roberts says that's why Obama needs to get involved and get a climate bill passed.

The war against EPA regulations will also be waged with aggressive public relations campaigns. There will be great hue and cry about the economy-destroying burden that command-and-control regulations impose on American business. And unlike with a climate bill, responsibility (read: blame) cannot be dispersed. There is no hint of bipartisanship. Responsibility for EPA regulations will fall entirely on Barack Obama and his administration, not on Congress—which is probably how Congress prefers it. If it’s a total mess, or demagogued as one (as is all but certain), it’s Obama that takes the hit. That is yet another reason he’d rather avoid it.

Greens are fighting to preserve EPA authority in the climate bill. Some have even said that it would be preferable for legislation to fail and the EPA to take over. It’s not hard to understand why—something needs to be done about existing coal plants, and there aren’t many tools in the climate bill toolbox to address them. But no one should be under any illusions. The NSR/PSD/BACT approach is grossly suboptimal for the job that needs doing. It might have the intended effect—killing coal plants—but there’s potential for unintended effects as well, including substantial political blowback.

Both sides, greens and industry, have reason to fear if the climate bill fails. It’s terra incognita, a volatile and unpredictable situation. Obama doesn’t need any more problems like that. That’s among the reasons he is likely, this fall, to put some of the time and energy toward lobbying for a good climate bill. From his narrow political perspective, virtually any bill is preferable to catching the EPA tiger by the tail. That tiger eats bunnies.

In this case, the House has already passed a bill, so really we're looking at the Senate as the holdup here. But the dynamic of Senators not wanting to be responsible, pushing all the political liability on to the President, will be difficult to change.