The Political Path to Federal Climate Legislation

Grist has a number of very interesting posts discussing why the effort to pass climate change legislation failed in 2010 and how to succeed next time.  The exchange was prompted by a major new paper by Theda Skocpol, a Harvard political scientist. She concludes:

Ideological advocates, carbon industry dead-enders, and populist anti-government forces are the ones who hold sway in the GOP right now, including billionaire elites and grassroots activists fiercely opposed to any and all government efforts to fight global warming. The only way to counter such right-wing elite and popular forces is to build a broad popular movement to tackle climate change. Ways must be found to use policy ideas as tools to knit-together inside-outside links among many organizations, including some that can draw masses of ordinary citizens into the transition to a green economy. Carbon caps are still needed, but they should be formulated and fought for in new ways that empower many kinds of reformers to work together – for transparent legislation that delivers concrete benefits to millions of regular American citizens.

I have to confess that I haven’t yet had a chance to read all of the 129-page paper yet.  In the meantime, however, I do have a few thoughts about the issue.  Skocpol analysis is based on a comparison of the Health Care Act and Waxman-Markey.  It may also be instructive to compare Waxman-Markey with AB 32.  Why has California been able to enact a rigorous cap-and-trade system when Congress was unable to do so? It probably helped that AB 32 was passed before the recession hit, but this can’t be the whole explanation.  After the recession was in full force, Californians defeated a ballot initiative to put AB 32 on hold indefinitely, so economic factors weren’t the only drivers.

In other words, why was California different?  It probably helped that AB 32 was passed before the recession hit, but this can’t be the whole explanation.  After the recession was in full force, Californians defeated a ballot initiative to put AB 32 on hold indefinitely, so economic factors weren’t the only drivers.

It seems to me that there were a number of key facts that made the California effort feasible, paralleling the reasons I’ve discussed for why Congress failed to act:

  1. California doesn’t have any coal mining and is less dependent on coal for electricity than many states in the Midwest and South. There was actually significant support from industry for CleanTech interests.
  2. The Democrats have a firm grip on the California legislature and were able until recently to draw district lines that protected their incumbents, whereas a significant number of Democratic Senators are not from safely Democratic states.
  3. Except for tax increases, California does not require super-majorities to pass legislation.
  4. Although political polarization is high in California as elsewhere, through a fluke the governor was a moderate Republican with a high public profile who favored climate legislation.
  5. Californians are probably more pro-environmental than the general U.S. population.

The political problem faced by supporters of Waxman-Markey was that, given the polarization of the Republican Party, they needed every Democratic vote in the Senate.  This was also true of Health Care Reform, as it turned out.  The difference was that Democrats from coal-producing and coal-using states could not be persuaded to go along.

If this analysis is right, then one or more of the following things must happen before federal climate legislation can pass:

  1. The political significance coal declines greatly due to contracted mining and use of coal — in turn caused by federal regulation and a shift toward natural gas. This is beginning to happen.In the mean time, CleanTech interests are strengthened by various state programs and by federal programs to encourage renewable energy.
  2. Democrats strengthen their position in Congress, and in particular gaining or exceeding 60 seats and having more of those seats be safe from Republican challengers. This seems iffy, to say the least, in the short run, but possibly more likely in the long run due to demographic shifts.
  3. Filibuster rules are changed to eliminate or significantly weaken the need for supermajority support. This might happen to at least some extent.
  4. Climate legislation gains some Republican support, which would require a resurgence among moderate Republicans (and decline of the tea party).  Unclear, but the tea party does seem to be loosening its grip.
  5. As Skocpol suggests, public opinion substantially shifts toward environmental protection in general and cutting carbon in particular.  Last year’s extreme weather has helped move public opinion, but she’s right that more need to be done to build a grassroots movement.

Or, in other words, the U.S. as a whole would have to become more like California along at least one or two of these dimensions.  Weakening of filibuster rules is probably the key point.  If that happened, at least some of the additional factors would probably still be necessary, but to a lesser degree required by the need for 60 votes.  Of course, there’s also the need to pass the House, which requires either firm Democratic control or enough moderate Republicans to join with Democrats to pass climate change legislation.  These things are all possible, but they won’t happen overnight if they happen at all.  In the meantime, it remains important to use other channels to achieve carbon reductions such as EPA regulations under the Clean Air Act and state legislation like AB 32.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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