Comprehensive Federal Legislation to Regulate Greenhouse Gas Emissions
| Date | 01 November 2009 |
| Author |
39 ELR 11068 ENVIRONMENTAL LAW REPORTER 11-2009
A R T I C L E S
Comprehensive
Federal
Legislation to
Regulate
Greenhouse Gas
Emissions
by Tom Mounteer
Tom Mounteer is a partner in the Washington,
D.C., oce of Paul Hastings, where he co-
chairs the rm’s environmental practice.*
Cli-
mate Change Deskbook. In a book jacket testimonial,
Law wrote of the Deskbook
of Representatives’ passage of a comprehensive bill. is
to update the Deskbook to reect developments since its
publication just a few months ago. It serves as replacement
text for Section 3.3 of the Deskbook. Tempting fate, the
authors completed the manuscript that became this Article
before Congress returned from its August recess and before a
Reitze’s challenge, no doubt, endures.
I. The Politics of Climate Change
From 2007 through 2009, when the topic turned to compre-
hensive federal climate change legislation, the discussion was
generally about which variations of cap-and-trade legislation
bills ga ined the most traction in the U.S. Congress: on the
U.S. Senate side, S. 3036, the Climate Security Act of 2008,1
the principal sponsors of which were Sens. Joseph Lieberman
(I-Conn.) and John Warner (R-Va.), and so the bill is com-
monly referred to as Lieberman-Warner, and, on the U.S.
House of Representatives side, H.R . 2454, the American
Clean Energy a nd Security Act of 20 09, the principal spon-
sors of which were Reps. Henry Waxman (D-Cal.) and Ed
Markey (D-Mass.), and so the bill is commonly referred to as
Waxman-Markey.2 During the 2008 presidential campaign,
bookended by Senate and House consideration of these lead-
ing bills, when the two presidential candidates discussed
climate change direct ly, they too did so mostly in terms of
cap-and-trade legislation. While cap and trade may have
been its focus, Waxman-Markey contained laundry lists of
new federal programs to spur clean energy, reduce mobile
source greenhouse gas (GHG) emissions, and foster “smar t
grid” technology.
A. 2007–2009 Activity
On December 5, 2007, the Senate Environment and Pub-
lic Works Committee reported the Lieberman-Warner Bill,
which embraced an economywide cap-a nd-trade approach,
School. He is the author of the Climate Change Deskbook (ELI
for his thoughtful comments on the manuscript. He thanks associates
Je Allmon, Matt Raeburn, and Jennifer Shea, in the environmental
contributions. e author also acknowledges with deep appreciation
1. See S. 3036, 110th Cong. §2 (2008); see also S. R. N. 110-337, at 1-3, 106
(2008). e bill was originally introduced as S. 2191, 110th Cong. (2007).
2. H.R. 2454, 111th Cong. §711 (2009). Greg Hitt & Stephen
Power, , W S. J., June 27, 2009, at A1.
Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
11-2009 NEWS & ANALYSIS 39 ELR 11069
out of Committee.3 It was the rst climate cha nge bill to
pass out of a congressional committee. On June 2 , 2008,
the Senate voted 74 to 14 to a llow debate on the bill.4 On
June 4, Republicans required Sen. Ba rbara Boxer’s (D-Cal.)
amendment to the bill, in the nature of a substitute, to
be read aloud in the Senate chamber for eight hours.5 On
June 6, Senate Democrats were unable to muster the 60
votes (falling 12 votes short) needed to break a libuster
to continue debating t he bill. Senate Democratic leaders,
recognizing they would not be able to get a vote on the bill,
pulled it o the oor.
With Lieberman-Wa rner’s demise, the prospects for com-
prehensive climate change legislation before the 2008 presi-
dential election ended.
[S]upporters had hoped to get the Senate on the record
on several amendments that could help shape a cl imate
change bill in the next Congress . Instead, the Senate never
addressed issues that will be critical to any future legisla-
tion, such as the role of nuclear power or whether to preempt
more stringent action at the state level.6
Failure of Lieberman-Warner led a proponent of legisla-
tion, Ei leen Claussen, of the Pew Center, to conclude the
next proposal would have to be simpler.7 Indeed, observers
have attributed states’ success in enacting measures to curtail
GHG emissions to the fact that they have not adopted (and
perhaps did not have to adopt) comprehensive legislation.8
In the 2008 presidential campaign, there wa s some con-
sensus at the top of the tickets. Sens. John McCain (R-Ariz.)
and Barack Obama (D-Ill.) agreed that climate change is
the leading environmental problem confronting the country.
ey agreed on a cap-and-trade approach to the problem.
ey disagreed, however, on the elements that cap-and-trade
legislation should include.
On June 26, 2009, t he House passed Waxman-Markey by
a close vote of 219 to 212.9 e horse-trading by which Chair-
man Waxman eked out the slim margin of victory by which
H.R. 2454 passed was epic, even by Washington standards.
Support for comprehensive climate change legislation
divides along both party and geographic lines. Reporting
a few days before the House vote on Waxman-Markey, the
described it as a feud “between coastal liber-
3. S. R. N. 110-337, supra note 2, at 2.
4. Dean Scott, Democrats Look to Break Impasse, but Cloture Vote Could Mean End
of Bill, BNA D E’ R. A-9 (June 6, 2008).
5. Avery Palmer, Climate Change Bill Stalls at Start, C. Q. W. (June 7,
2008) [hereinafter Palmer].
6. Id.
7. Id.
8. Bradford Plumer, A New Leaf, A 63, 64 (Sept./Oct. 2008) (“one rea-
son many states haven’t been aicted by the legislative paralysis that’s plaguing
Congress is that they don’t try to ram through one big climate change bill all
at once”) [hereinafter Plumer].
9. Id.
als, who supported a hard cap, and legislators from the Rust
Belt and farm states.”10 One of the biggest issues involved
concerns of the coal-producing states a nd the result the GHG
emissions reduction mandate could have on their communi-
ties, and that, in contrast, t he biggest supporters of the bill
represented wealthier coastal states t hat would see little eco-
nomic impact.11 In the vote passing Wa xman-Markey by a
slim margin, 44 Democrats from 24 states joined nearly all
Republicans in voting against t he bill, and eight Republi-
cans from six states broke ra nks to support the measure.12
All eight of the House Republicans who supported the bill
came from states with two Democratic senators who were
strong supporters of cap-and-trade legislation, and seven of
them ca me from districts that President Obama carried in
the 2008 election.13
One illustration of the ty pe of horse-trading that Chair-
man Waxman used to secure H.R. 2454’s passage involved
the bill’s provisions to “allow farmers to sell ‘osets’ for [car-
bon dioxide (CO2)] that their crops soak up from the air or
for reducing [GHGs] from animal waste.”14 At the time the
House was considering Waxman-Markey, the U.S. Environ-
mental Protection Agency (EPA) was in the midst of accept-
ing public comment on a proposal that would have factored
in “indirect land use change-related emissions, including
emissions from land clearing and agricultural practices in
other countries due to domestic demand for biofuels” in its
development of a renewable fuels standard.15 is was per-
ceived as favoring wind and solar energy as truly renewable
sources to the detriment of the U.S. biofuels industry. Chair-
man Markey’s draft bill vested authority of this issue in EPA .
House Agriculture Committee Chairman Collin Peterson
(D-Minn.) “want[ed] the A griculture Department to have
the authority to decide whether environmentally friendly
actions by farmers would qualify for lucrative benets under
a system in which allowances to emit [GHG] would be
bought and sold.”16 To secure the support of members from
agricultural districts, Chairman Ma rkey revised the bill to
10. Paul Kane et al., , W. P, June
26, 2009, at A4.
11. Brandon Lorenz, Rep.
, F N (June 2009), http://www.facilitiesnet.com/green/ar-
ticle/Rep-Henry-Waxmans-bill-to-Cap-Carbon-Dioxide-Faces-Long-Odds--
10874.
12. , I EPA (July 6,
2009).
13. Id.
14. Paul Kane et al., , W. P, June
26, 2009, at A4. See also Steven Mufson, Vote Set on House Climate Bill, W.
P, June 24, 2009, at A03 (referring to “credits farmers could receive for
tilling and conservation practices that keep carbon dioxide stored in soil”)
[hereinafter Mufson, Vote Set].
15. , I
EPA (July 25, 2009).
16. Steven Mufson, Democrats Struggling for Consensus on Climate Bills, W.
P, June 15, 2009, at A5.
Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
To continue reading
Request your trial