Everything old is new again. Around this time last year, the Environmental Protection Agency (EPA) was in the process of issuing major rules that would lead to regulation of greenhouse gases under the Clean Air Act (CAA). Many in Congress opposed these moves, and sought to delay or halt them. I wrote about these attempts in this space (here, here, here, and here) and, as I predicted, they failed—none reached the President’s desk.
But failure has not stopped EPA opponents from trying again. Since last year, some things have changed. The EPA has moved forward with regulation, implementing GHG-related permitting requirements for new and modified emitters, and announcing in December that it plans GHG emissions standards for existing power plants and refineries. But none of these moves are surprising—the EPA is not pushing any harder now than it was last year.
But of course the 2011 Congress is different from the 2010 version, particularly since Republicans now control the House. Will this Congress be able to derail the EPA?
Maybe. It depends, not just on politics, but on what avenue of attack Congress chooses. This choice will probably be made first in the House, where new Energy and Commerce Committee Chair Fred Upton (R-Mich.) will set the agenda. Four broad options are on the table. Last year, each of the first two options were pursued. All four are likely this year. Let’s briefly look at each in turn.
1) New legislation: Congress could simply pass a law modifying EPA authority. Proposals range from a short delay in EPA GHG authority to removing GHGs from the CAA entirely, effectively overturning the Supreme Court’s Massachusetts v. EPA decision.
While Republican control of the House does smooth the path of new legislation somewhat, the Senate and above all the President remain significant barriers. While modest legislation, such as a delaying bill, is likely to attract some Democratic support, it will need 60 votes to pass the Senate. Even then, President Obama is certain to veto any legislation restricting EPA authority. It seems very unlikely that any such bill could attract a veto-proof majority.
2) Congressional Review Act: Congress has the authority to cancel any regulatory action with specific legislation. This authority is only available for 60 days after the regulation is formally issued, however.
CRA resolutions do not require 60 votes to pass the Senate. This is relatively little help, for two reasons. First and most obviously, the President will likely veto any resolution. Furthermore, almost all of the significant GHG rulemakings made by the EPA were issued well over 60 days ago, and cannot be rescinded by CRA resolution anyway.
3) Appropriations: Congress may choose not to fund EPA programs, even if they remain legally permissible (or even required).
Congress has not yet passed a budget for 2011, so this Congress will need to pass two over the next year. This gives ample opportunity for restricting EPA funding. The appropriations process is ultimately subject to the same procedural requirements as other legislation, so any budget will have to pass the Senate and be signed by the President. Defunding the EPA makes either far less likely — but unlike EPA-specific legislation, the politics are hard to predict. The budget process always involves compromises. How hard are EPA’s opponents and supporters willing to fight? If Congress does pass a budget that defunds agency GHG regulation, would the President veto it – risking a government shutdown?
4) Oversight: Even if none of the above is possible, Congress’s (or often individual committee’s) subpoena power can be used to investigate and, in practice, slow EPA action.
While oversight measures cannot alter EPA’s legal authority, they can make regulatory life very difficult. Since individual committees can conduct hearings and investigations, there is relatively little to stop motivated members of Congress from targeting the EPA with these tools. They are unlikely to stop any regulatory program, but they will be a drain on agency resources and energy.
In short, I don’t think headline-grabbing moves to alter EPA legal authority over GHGs are much more likely of success this year than last. That’s unlikely to change until and unless there is a change in the White House. These kinds of bills are more politics than policy; I doubt their supporters really think they will pass. Instead they allow members to make statement votes, and force EPA supporters to make votes that may be used against them later.
But the appropriations process and Congress’ oversight powers are both real, though different, threats to EPA regulation. Budget negotiations this year are likely to be acrimonious, and the EPA is a small pawn in a bigger game. If EPA opponents make defunding the agency a priority, they may be able to achieve it by doing so in an otherwise-palatable budget that the President determines he cannot afford to reject. In this sense, the relative political unimportance of the EPA works to its advantage — will Republicans in the House choose defunding the agency as their line in the sand, over other measures with much larger fiscal impact? This seems unlikely, but certainly not impossible.
Committee oversight presents a different challenge to the EPA. Some level of Congressional interference is certain, but its extent probably depends greatly on the agency’s ambition. If the EPA fears Congressional subpoena, it is less likely to regulate strongly or creatively. Instead, it may slow-walk some measures, and scrap others. Unfortunately, this may have the perverse effect of making regulation less efficient, rather than simply leading to less regulation. If agency resources are stretched (because of Congressional demands, underfunding, or both), it is less able to do careful analysis. If the agency makes avoiding controversy a paramount goal, it is less likely to try innovative approaches (such as tradable GHG performance standards) aimed at more efficient regulation. An EPA that does the minimum required by law might be more costly to the economy, not less.
This piece is cross-posted at Weathervane