Gaming Out EPA, Congress, and Climate Change
The Republican Party is not going to sit still as EPA regulates greenhouse gas emissions. Oh yes, they and their assorted constituencies will file lawsuits, but there is a more direct way for them to go: simply attach a rider to a free-standing EPA appropriations bill forbidding it to spend any funds on regulating greenhouse gas emissions. (Maybe ditto with Transportation and Energy, but it’s EPA where the action is). There will be little trouble getting enough Democratic votes in the Senate for such a tactic as well (47 Republicans plus Ben Nelson, Mary Landrieu, Mark Pryor, Joe Manchin, Jay Rockefeller, Kent Conrad, Max Baucus, Jon Tester, etc. etc.).
Will this tactic work? The most straightforward answer might be yes: either President Obama signs the appropriations bill with the rider, in which case EPA is forbidden from regulating, or he vetoes it, in which case EPA has no money and can’t do anything anyway. It seems that EPA might be boxed in.
But I’m not completely sure of this. One might think that Republicans would love to see EPA shut down completely, but is that true? If EPA shuts down, then it can’t give a Title V permit to any power plant in the country. It can’t issue an National Pollution Discharge Elimination System permit to any housing or commercial development. It can’t release Superfund money. And if EPA can’t issue any permits, then that means that any business that needs such permits to operate can’t do so.
Put another way, there are a lot of businesses — many of them closely tied with the Republican Party — who need EPA to operate, and might very well tell Republicans to get a deal done.
I’m not overly optimistic about this. The Republican base would love to see EPA shut down, and Hill Republicans will surely face its wrath if they compromise. Moreover, at least the national business groups, as represented by the United States Chamber of Commerce, have decided to put ideology over the interested of their members and take a hard line right-wing line. Moreover, since the Republicans will also attempt this strategy with various aspects of the health care bill, President Obama might have only so much tolerance for vetoing bills and playing chicken with Congress. That said, it seems to me that the interests at stake here are somewhat more complex than an initial view would suggest.
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…READ more