Today’s Climate (Change Legislation) Forecast

I’ve made a conscious decision not to blog about every twist and turn in the climate change legislation debate. While a blogger can’t quite take a “wake me when it’s over” position, I think that periodic updates are going to be more than sufficient. That being said, in the wake of EPA’s issuance of its endangerment finding last week, a brief update seems appropriate.

What’s clear at this point is that at least everyone in the political center favors a legislative approach and hopes that the endangerment finding will ultimately have no practical impact, other than serving as an incentive for Congress to Act. When not only David Crane, CEO of NRG Energy, and James Rogers, CEO of Duke Energy, but also Fred Krupp of EDF take that approach, it’s clear that the middle ground is firmly occupied.

In the meantime, the U.S. Chamber of Commerce is still taking the position that EPA does not have the discretion to regulate greenhouse gases without regulating relatively small emission sources – with the result being economic and political chaos. 

The interesting question in all this is one that will probably never get discussed – whether EPA’s issuance of regulations concerning greenhouse gases under the current Clean Air would violate the nondelegation doctrine. From a purely legal point of view, that question was basically answered by the Supreme Court decision in Whitman v. American Trucking Associations, in 2001, in which the Supreme Court concluded that the Congressional grant of authority to EPA to issue NAAQS did not violate the nondelegation doctrine.  From a policy perspective, however, it’s difficult to avoid the issue.  

When Fred Krupp says that Congress is “better suited … to work out the details than EPA,” he is fundamentally making the point that these are legislative decisions and it is appropriate that they be made by our elected legislators. In their heart of hearts, would even the most vociferous advocates of the need to regulate greenhouse gases as soon as possible say that these are decisions that should be made be EPA, rather than Congress?  Only if they are willing to admit that they don’t believe in our current version of representative democracy.

It’s unclear where this will all end up, but the prognosticator almost most certain to be correct has to be former EPA depute associate administrator Jason Burnett, who helped draft EPA’s original endangerment filing that the Bush administration declined to issue. As Burnett acknowledged, “there’s no question … that there will be some unintended consequences.” 

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