Congress must come to terms on climate change regulation

Published in The Hill

No single regulation has been a bigger rallying call for climate action and the environmental movement than the Clean Power Plan (CPP).

While much has been made about President Obama’s signature climate regulation and how it remedies the effects of climate change, it seems that little attention has been paid to the country’s overall climate policy and, more importantly, who decides what that is.

With major global implications at stake, shouldn’t our nation’s climate policy be discussed, debated and acted upon in Congress, as opposed to being left to an unelected bureaucracy to apply an outdated law? While climate change itself is considered a settled matter, how our nation responds is anything but settled.

Take Congress for instance. In the 1990s it had an opportunity to amend the Clean Air Act (CAA) to address climate change and chose not to do so. Rather, it specifically asked the EPA to find “nonregulatory” ways to address the issue of reducing carbon dioxide (CO2) emissions.

Then, in 1997, the Senate had an opportunity to ratify a treaty on climate change and reduce CO2. Because of its projected negative economic effect, it failed 95-0. The more recent Paris Agreement, also addressing CO2 reduction, was entered into unilaterally by President Obama, but purposefully not submitted to the Senate, where its ratification would have been heavily debated.

The decision to forgo the ratification process, for better or worse, has now allowed the Trump administration to unilaterally withdraw from the agreement.

Congress needs to address the uncertainty in our nation’s climate policy in a bipartisan way. Because, while bypassing Congress may be the politically expedient choice for a frustrated administration, it does not instill confidence in the business community and it is certainly not a sustainable long-term strategy.

Then there is the U.S. Supreme Court. Many argue that the court simply mandated the EPA to regulate CO2 in Massachusetts vs. EPA. However, a closer read of that case reveals that, in its 5-4 decision, the court told the EPA to regulate CO2 under the CAA, unless it could give a reasonable explanation why it shouldn’t.

In this case, the EPA did give the court a “laundry list of reasons not to regulate,” though apparently none were sufficiently “reasonable” enough for five justices of the court. Moreover, those same five justices had to change the law to justify their decision.

Changing the law to justify a 5-4 decision can be a pretty good indication that the court is stepping out of its constitutional role of interpreting the law, and instead injecting itself into a policy decision.

More telling, is that the four dissenting justices argued that the case shouldn’t even have been in front of them because the EPA would be unable to regulate in a way that would have remedied the claimed wrong, i.e. federal regulations could not stop the negative effects of global climate change.

Again, Congress, not the Supreme Court, should be dictating climate policy.

Now to the CPP. This regulation, which is based in part on the Supreme Court’s decision and the EPA’s subsequent “endangerment finding,” was argued as a necessity to help protect people from the impacts of global climate change.

However, even President Obama’s former EPA Administrator Gina McCarthy indicated that the CPP would not achieve its ultimate goal of protecting the people from the long-term results of global warming.

While some argue that the U.S. needs to lead by example with regard to CO2 emissions, it is a stretch to claim that our nation’s regulatory system was intended to further foreign policy goals.

Current EPA Administrator Scott Pruitt should be commended for recognizing the limitations of the CAA when it comes to regulating CO2 through the CPP.

The original intent of the CAA was never to regulate certain energy sources out of existence i.e., coal, but rather require that harmful emissions be reduced to the extent possible through the “best systems” available. While regulating CO2 emissions will likely continue at the EPA, Congress needs to again address this issue.

What has become abundantly clear is that there is widespread disagreement in Congress, the Supreme Court and now two successive administrations in how to address climate change. Given its global impact, these types of monumental decisions need to be made in the halls of Congress as the elected body to identify, discuss and act as representatives of the people.

As passionate as both sides of this debate are, bypassing a gridlocked Congress to do that which could not be done legislatively is not the right path. Congress and the president should work together to determine how to address it domestically through legislative deliberation and globally through the treaty process.

As a nation we must have a well-defined bipartisan approach to climate change.

Tim Doyle is vice president of policy and general counsel for the American Council for Capital Formation, a free-market, pro-business think tank.