by Michael A. Livermore
The Obama administration has made
very clear that they want Congress, rather than EPA, to take the lead in
creating a national response to climate change. Despite their oft-repeated preference for congressional action,
recently, EPA head Lisa Jackson had to once again reiterate that the agency had no plans to do a carbon cap.
There is some irony in members of
Congress worrying about what EPA is up to when their time might be better spent
putting a law together themselves.
Under existing law, it is possible
for EPA to create an economy-wide price on carbon. The Clean Air Act gives the agency broad
authority to regulate pollutants deemed harmful to the health and safety of the
population, and there are several routes EPA could take to create a national cap-and-trade, even
potentially setting up allowance auctions and going through states to refund
the profits back to American taxpayers.
But going down this road has many
downsides. First, (apologies to Paul
Thomas Anderson) there will be lawsuits.
Even if EPA uses cap-and-trade to keep the costs of regulation down, certain
industry groups will be in court before the ink
is dry on the new rule. And even if
courts ultimately side with EPA, these lawsuits will succeed in slowing down
progress.
The second problem is the threat of a
new president coming in and dismantling the system. Anything that Obama does can be undone by a
future administration-either directly or through a lack of budget support and
enforcement.
Running carbon pricing through EPA is
also a little more unwieldy than it could be if structured by smart legislative
action. Regulators would have to
jury-rig an auction system, possibly needing to enlist the help of the
states. Command-and-control mandates
under the Clean Air Act would stand, potentially hindering the efficiency of
the program.
There is also a small “d” democratic
issue. Controlling America’s greenhouse gases will
take a massive economy-wide effort and there is a legitimate benefit in having
the issue hashed out in the legislature by elected officials. That is not necessarily to say that the
legislature will arrive at a better plan than regulators, but a new law passed
by Congress and signed by the president would have a have a stronger democratic
imprimatur than an EPA regulation.
But if Congress cannot get its act
together, a Plan B of EPA action would not be so bad. If the regulation is well-designed and
justified according to the letter of the law, it will be better able to
overcome legal challenge. Auctioning
permits and sending a monthly refund check to taxpayers would build broad based
public support for the program, buffering it from the winds of change in the
White House. While running cap-and-trade
through EPA is not preferable, it is clearly better than infinite delay in
Congress.
There is still time and a glimmer of
hope for a climate bill has
been rekindled.
But if it doesn’t pass, the world’s eyes will turn to EPA with hope that
they are prepared to pick up the slack.
With that in mind, legislators’ best strategy for fending off a more
active regulatory agency is to get to work and pass a bill themselves.
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