BEYOND COPENHAGEN

The Congress, Not the EPA, Must Take the Lead to Address Climate Challenges

Congress is currently engaged in one of the most complex policy debates of our time – how best to mitigate climate change without harming the economy.

Even as congressional debate continues, however, the Environmental Protection Agency is moving forward with a plan of its own. The agency recently announced it will regulate emissions from all facilities that emit more than 25,000 tons of greenhouse gases per year, starting as soon as six months from now. 

Here’s the catch: the EPA hailed this announcement as a step forward, but it’s hardly a desirable approach to meet our climate goals. In reality it’s a thinly-veiled threat, intended to force Congress to pass climate legislation, even though a good bill is not yet close to completion. 

That leaves me deeply concerned about the unintended consequences that could accompany this regulation – for starters, significant economic cost and little environmental benefit. 

While EPA has estimated that its regulation will cover roughly 14,000 “sources” – essentially businesses, buildings and farms – the actual number will likely be far higher. In regulating emissions, the EPA is required to follow the Clean Air Act, which establishes an explicit regulatory threshold of 250 tons per year. That’s 100 times lower than the EPA’s proposal. 

To its credit, the agency recognized that the required threshold is “not feasible” for greenhouse gases.  But instead of accepting that the Clean Air Act is unsuitable to regulate climate change, the agency chose to depart from its requirements. Anytime an agency fails to follow the law, it opens itself to litigation. I fully expect lawsuits will challenge the 25,000-ton threshold, and because it has no legal basis, the courts will reject it.

Once the 25,000-ton limit falls, any facility emitting more than 250 tons per year would suddenly become subject to the EPA’s strictest standards. Because almost all activities result in the emission of greenhouse gases, the agency’s new regulatory net would then catch an estimated six million sources. That’s about 430 times more than the EPA envisions.

This scenario is more likely than you’d think. Clean Air Act experts and environmental lawyers alike have expressed skepticism about the EPA’s proposal. And a judge on the Circuit Court of Appeals remarked that he hopes “the EPA lawyers are participating in the policy process as legal advisers, not policy advocates” because “whether or not agencies value neutral principles of administrative law, courts do, and they will strike down agency action that violates those principles.”   

What would EPA regulation mean for Alaska? Refineries and utilities, fish processors and military installations – even large stores, schools and hotels in my home state could be required to bring their emissions below the 250-ton threshold, regardless of cost. 

This should make clear that while the Clean Air Act is one option to address climate change, it is among the worst of our options. Congressional action is almost unanimously preferred, but right now Congress is a long ways from completing legislation that can deliver meaningful greenhouse gas reductions without damaging the economy. 

Understanding this, I recently sought to give Congress additional time to develop sensible legislation. I did this by offering an amendment to call a temporary, one-year “timeout” on the EPA’s imminent regulations. While my proposal drew the ire of some – and was blocked from consideration by Senate Democrats – I remain convinced of its importance. 

We must reduce greenhouse gas emissions, but it’s unacceptable to do so at any cost or by any means, as regulation under the Clean Air Act would entail. The climate debate is already difficult, and is only made harder when forced to proceed under a cloud of economically damaging regulations from federal bureaucrats. 

You can be assured that I will continue to work in good faith with all who want to address climate change. But I also recognize that settling for our “least worst” option – a flawed climate bill to stave off costly regulations – will do little to resolve a challenge this great. We need an effective policy that will endure, and that’s why Congress, not the EPA, must take the lead.   

Murkowski is Alaska’s senior senator and the Ranking Member of the Senate Energy and Natural Resources Committee.

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