Here Comes Some Old Fashioned Command and Control Climate Regulation

The air Americans breathe today, while far from perfect, is far cleaner than it would have been without EPA's expertise in developing and enforcing regulations. Much of our water is cleaner too.
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Recently United States Senate Democrats gave up their effort to enact a climate and energy bill before the 2010 mid-term elections. My reaction to this latest, all too predictable abdication by that sad excuse for an upper house of our national legislature is the same I had in early April when I wrote on this site:

"While a great deal of attention has been focused on Congress, the real action in U.S. climate policy over the past two years has been at the state and local level and in the U.S. EPA. Municipalities like New York City have moved to reduce greenhouse gasses emissions with more energy efficient building codes and programs like Mayor Bloomberg's plan to plant one million trees. Meanwhile EPA's tortoise-like regulatory process has been making slow and steady progress to set a regulatory cap on greenhouse gas emissions. Since the U.S. Supreme Court's 2007 ruling that greenhouse gasses could be regulated as an air pollutant under the Clean Air Act, EPA has been moving to collect information on emissions and then put in place a set of rules that would gradually kick in over the next decade."

EPA is moving as it has consistently since its creation forty years ago, to put in place a standard command and control mechanism to regulate greenhouse gases as dangerous air pollutants. The air Americans breathe today, while far from perfect, is far cleaner than it would have been without EPA's expertise in developing and enforcing regulations. Much of our water is cleaner too. While regulatory enforcement was frozen during the George W. Bush administration, state-level enforcement aided by environmental interest groups helped pick up some of the slack. Our national government may not know how to prevent oil spills in the Gulf of Mexico, but we know how to make and enforce environmental rules. That capacity is in place and works pretty well when we allow it.

While a comprehensive and well thought out energy and climate bill would be better than the partial and incremental approach EPA has initiated, I do not underestimate the importance of the steps being taken. Although it takes 5 to 10 years for a new regulatory program to fully take effect, most of the crucial early steps needed to regulate greenhouse gasses are well underway. Large emitters of greenhouse gasses have been required to measure and report their emissions. Rules limiting greenhouse gas emissions from large emitters are being written. Most importantly, the more sophisticated business leaders can see the writing on the wall and know that some form of climate pollution regulation is on the way. They are figuring the costs of compliance with those rules into their business plans.

The price on carbon long sought by environmental activists and alternative energy entrepreneurs will be set indirectly by these regulations. Electric utilities will need to develop a method to sequester and store greenhouse gasses. Unlike Waxman-Markey, there will be no offsets available for purchase to allow emissions to continue. There will be no cap and trade to allow old polluting factories to buy pollution allowances from newer, cleaner facilities. There will be compliance schedules, penalties, and injunctions. The same methods we employed to clean water, toxics and other air pollutants will be trotted out to deal with the U.S. contribution to global warming. It will be the Environmental Lawyer Full Employment Act of 2010. To all you law students out there, sign up for climate law; it's going to be a growth area for the next several decades.

Unlike our experience regulating "conventional" air pollutants, many of our significant emitters are electric power plants, so the option of moving the factory to the developing world won't work this time. Of course, we should all get ready to hear endlessly that these regulations are job-killing, autocratic government commands. We'll start to hear from conservative business lobbyists that what is really needed is an approach that permits cap and trade and a focus on renewable energy, energy efficiency and carbon capture and storage. You know, something like that Waxman-Markey bill passed by the House a few years ago.

Congress will not pass a comprehensive climate and energy bill before the mid-term election, but after November, I would look for the political dynamic to shift suddenly and dramatically. If the Democrats lose ground in the House and Senate as expected, there may very well be an active and productive lame duck session of Congress. If the Democrats lose one or both houses of Congress, this session will take on an even greater sense of urgency. Many of our most important pieces of environmental legislation, such as Superfund and Alaska Lands, have been enacted during lame duck sessions. I wouldn't be surprised to see that happen once again.

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