EPA Ruling Steps Up Pressure on Congress

Science, and especially government science, isn’t supposed to be political, but it certainly can be strategic. So when the Environmental Protection Agency announced yesterday its latest findings—that greenhouse gasses threaten public health and the environment—it at first seemed an odd precursor to the bigger news on carbon and global climate happening this week in Copenhagen. Except this was no coincidence. Rather, it was a well-timed maneuver to boost the U.S.’s voice in Copenhagen, and more important, a stunningly effective way to pressure the Senate to get moving on climate legislation.

On the eve of President Obama’s trip to speak in Denmark, the White House knew that the president’s plea for action would be anemic without even a modicum of commitment from the U.S., one of the world’s largest emitters. It would be ideal for Obama (and certainly appear more democratic) if Congress had already taken the reigns on domestic policy, but with that looking as unlikely as the polar bears saving themselves, Obama and leaders at the EPA went with a backup. By claiming that greenhouse gasses like carbon and methane are detrimental to human health, the EPA cleared the way for application of the Clean Air Act, which allows the agency to mandate cuts in the name of healthy lungs without congressional approval.

The sound that came next was the environmental movement—having collectively held its breath in anticipation—exhale in relief. It essentially provides a fast track to capping carbon—a streamlined alternative to the months of backroom Senate negotiations and compromising that would likely produce a much weaker bill. But the two aren’t mutually exclusive. Just because the EPA took the lead on capping emissions doesn’t mean Congress now doesn’t have to. In fact, it’s the opposite.

Here’s why: The EPA’s pending efforts to cut emissions are only the “cap” part of the equation. Missing from the calculus is the “trade,” the market system of swapping carbon credits that provides the incentive for innovation. That’s something only Congress can legislate. So with mandatory cuts now pending, the Senate must pass some bill, any bill really, to make sure that someone can benefit from them.

Of course, one broad assumption here is that the EPA-mandated cuts are firm, in print, with ink dried. They’re not. Any governmental directive comes with an element of interpretation, and one can be sure that business groups will sue ad nauseam to contest the legitimacy of the law. Congress also has the option to refuse to fund the program, which will require a massive and expensive new framework of government regulators. Both are reasons that a bill in the Senate would be better for everyone: the Senate, the EPA, the voters, the environment, and certainly the president, who would see his approval ratings go the way of an ever-more-sputtering economy if the EPA directive is all that makes it through. But the short term is more vivid. And as Obama prepares to argue next week that the U.S. is serious about climate mitigation, at least his arsenal isn’t empty anymore.