Patchwork or Preemption, Redux

Yesterday, Senator Lieberman (I -CT) confirmed that the climate bill that he, Senator Kerry (D-MA) and Senator Graham (R-SC) plan to announce next week will include preemption of state and federal initiatives, including EPA’s Clean Air Act authority.  Leaving aside the potential in his statement for the bill to also preempt state renewable energy and efficiency programs, the goal of predictability and one nationwide cap-and-trade system is an approach that we endorsed a few weeks ago, and one that H.R. 2454 also contained, albeit with a 5 year moratorium, rather than a complete preemptive ban.

But this stance on preemption is drawing fire from both sides of the aisle: ClimateWire reports that Senator Whitehouse (D-RI) indicated he might vote against the climate bill if it shuts down programs like RGGI; while Senator Voinovich (R-Ohio) yesterday circulated a proposed amendment to the yet-to-be-seen bill that declares itself the "sole and exclusive authority for regulation of… or consideration of any greenhouse gas."  As such, the amendment would preempt all federal actions relating to greenhouse gas emissions under laws as diverse as the Endangered Species Act, Clean Water Act, and even NEPA.  It would also prohibit public nuisance litigation related to climate change, and states from regulating GHGs in any way, even uncontroversial utility-based efficiency programs. 
Clearly Senator Voinovich’s proposal goes too far.  State-run programs are critically important in setting policies and objectives that fit with the economy and needs of individual states. Our country is too large and diverse to have only one bill truly fit all.
One potential compromise position is highlighted in a letter that Senator Whitehouse and 13 other Senators sent to Sens. Kerry, Graham and Lieberman a few weeks ago, outlining their concerns about broad preemption in the Senate bill.  One of their chief concerns: losing the money that RGGI has generated for states’ use in funding clean energy, energy efficiency, and low-income energy support programs.  The letter speaks out against preemption of state-based cap-and-trade programs, but only if such preemption fails to ensure equity for the states that have taken early action.  Sitting in one of the RGGI states, this seems like a real concern to me. Perhaps if the federal program were to allocate a portion of allowances directly to the states for sale at auction to fund such programs, or, once the expected national auctions ramp up, funnel some of the money to states for their own initiatives, such concerns could be addressed.


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