H.R. 910: Seizing the Moral High Ground (How to Foil Opponents’ Rhetorical Tricks)

by Marlo Lewis on March 16, 2011

in Blog, Features

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Yesterday, the House Energy and Commerce Committee approved H.R. 910, the Energy Tax Prevention Act, as amended, by 34-19. The bill would stop EPA from ’legislating’ climate policy through the Clean Air Act. All 31 Republicans and three Democrats (Mike Ross of Arkansas, Jim Matheson of Utah, and John Barrow of Georgia) voted for the bill.

Opponents introduced several amendments, all of which were defeated.

Ranking Member Henry Waxman (D-Calif.) offered an amendment stating that Congress accepts EPA’s finding that “climate change is unequivocal.” Rep. Diana DeGett (D-Colo.) offered an amendment stating that Congress accepts as “compelling” the scientific evidence that man-made greenhouse gas emissions are the “root cause” of climate change. Rep. Jay Inslee (D-Wash.) offered an amendment stating that Congress accepts EPA’s finding that greenhouse gas emissions endanger public health and welfare. Rep. Bobby Rush (D-Ill.) offered an amendment limiting H.R. 910′s applicability until the Secretary of Defense certifies that climate change does not threaten U.S. national security interests. Rep. Ed Markey (D-Mass.) offered an amendment allowing EPA to issue greenhouse gas regulations that reduce U.S. oil consumption. Rep. Lois Capps (D-Calif.) offered an amendment limiting H.R. 910′s applicability until the Centers for Disease Control certify that climate change is not a public health threat. Rep.  Inslee also offered an amendment limiting H.R. 910′s applicability until the National Academy of Sciences certifies the bill would not increase the incidence of asthma in children.

These amendments had no chance of passing, but that was not their purpose. The objective, rather, was to enable opponents to claim later, when the full House debates the bill, that a vote for H.R. 910 is a vote against science, public health, national security, energy security, and children with asthma. This is arrant nonsense, as I will explain below.

Markey’s oil demand reduction amendment was perhaps the cleverest. After all, most Republicans are as alarmist about U.S. dependence on foreign oil as are most Democrats. All 31 Republicans voted against Markey’s amendment, but they had trouble explaining why.

Here’s why Markey’s amendment deserved defeat. Congress gave the National Highway Traffic Safety Administration (NHTSA), not EPA, authority to set fuel economy standards for new motor vehicles. Moreover, Congress gave NHTSA that authority under the 1975 Energy Policy and Conservation Act (EPCA) and 2007 Energy Independence and Security Act (EISA). The Clean Air Act provides no authority to any agency to set fuel economy standards.

Yet EPA is effectively setting fuel economy standards by establishing greenhouse gas emission standards for new cars and trucks.  As EPA acknowledges, 94-95% of motor vehicle greenhouse gas emissions are carbon dioxide from motor fuel combustion. And as both EPA and NHTSA acknowledge, “there is a single pool of technologies for addressing these twin problems [climate change, oil dependence], i.e. those that reduce fuel consumption and thereby reduce CO2 emissions as well” (p. 25327).

In short, by setting greenhouse gas emission standards, EPA has hijacked fuel economy regulation. EPCA authorizes EPA to monitor automakers’ compliance with federal fuel economy standards, but it gives EPA no power to set those standards.

The Markey amendment would reward EPA’s power grab by dramatically expanding the agency’s power! As Markey explained, his amendment would authorize EPA to reduce oil consumption throughout the economy — not just cars and trucks but also aircraft, marine vessels, non-road vehicles and engines, and industrial boilers. This exceeds any authority granted to any agency under any existing federal statute.

It is amazing that Markey would propose to make such a sweeping change in national policy in a one-sentence amendment based on five minutes of debate. Congress typically spends many years debating changes in fuel economy policy before enacting them because so many competing interests come into play even when the changes affect just one subset of one sector of the economy — passenger vehicles and light duty trucks. Yes, fuel economy standards may reduce oil consumption somewhat. However, fuel economy standards also increase the cost of motor vehicles and restrict consumer choice. More importantly, by encouraging automakers to produce lighter, smaller vehicles that provide less protection in collisions, fuel economy standards increase traffic fatalities and serious injuries.

What unintended consequences would ensue from applying fuel economy standards to planes, boats, boilers, etc.? Nobody knows. Congress has never held a hearing to find out. If Markey really wants EPA to control oil consumption throughout the economy, then he should draft a bill, try to find co-sponsors, try to persuade the majority to hold hearings, and try to persuade colleagues and the public to support it. Instead, he attempts through a one-sentence provision not only to legalize EPA’s hijacking of fuel economy regulation but expand it across the board to all oil-using machines! This sets a new standard for chutzpah.

All of the hostile amendments were designed to trick H.R. 910 supporters into abandoning their moral high ground. All were designed to suck supporters into affirming controversial positions that H.R. 910 neither presupposes nor implies. Opponents’ strategy was to change the subject so that H.R. 910 supporters would end up debating climate science, climate change risk, or oil dependence rather than the constitutional impropriety of EPA ‘legislating’ climate and energy policy through the regulatory backdoor. More than a few Republicans took the bait, allowing the other team to define, and thereby occupy, the moral high ground.

When the bill finally gets to the House floor, supporters need to do a better job of anticipating and foiling opponents’ rhetorical tricks. If I were writing a floor statement for an H.R. 910 supporter, it would go something like this:

H.R. 910 is called the Energy Tax Prevention Act. It could also be called the Democratic Accountability in Climate Policy Act. Or the Separation of Powers Restoration Act.

What are the premises on which this legislation is based? The Constitution puts Congress, not non-elected bureaucrats, in charge of determining national policy. Congress has never authorized EPA to determine national policy on climate change. The Clean Air Act was enacted in 1970, years before global warming emerged as a policy issue. The terms “greenhouse gas” and “greenhouse effect” do not even occur in the statute. The Clean Air Act is an even less efficient, less predictable, and potentially more costly framework for restricting the American people’s access to affordable energy than the cap-and-trade legislation that Congress and the public rejected last year.

Don’t take my word for it. Ask EPA Administrator Lisa Jackson, Rep. Ed Markey, and others who only last year warned that if we did not preempt EPA by enacting a cap-and-trade bill, we would get a greenhouse gas regulatory system that cap-and-trade critics would like even less.

I hope we can have a candid debate on H.R. 910. So far, however, opponents have tried to avoid the real issue, which is simply: Who shall make climate policy — the people’s representatives, or an administrative agency not accountable to the people at the ballot box? Our Constitution permits only one answer to that question.

Opponents say that Congress should step aside and let EPA make climate policy, because Congress won’t enact cap-and-trade or other measures they support.

That’s a very strange notion of democracy. Opponents seem to think they are entitled to win even if they lose in the halls of Congress and the court of public opinion.

H.R. 910 is designed to safeguard the constitutional separation of powers and the political accountability such separation was intended to secure. Opponents don’t want you to know that. That’s why they keep trying to change the subject. They want to have a debate on climate science. Or on oil dependence. They have their views on these topics. I have mine. What we think about climate science and oil dependence is irrelevant to what we are debating today.

Today we are not debating what climate and energy policy should be. We are debating who should make it. Some seem to think it’s okay for EPA to exercise power beyond any plausible legislative mandate because they and EPA share the same basic agenda. That’s not right.

No agenda is so important that it excuses congressional passivity or even complicity when an agency gets too big for its britches and starts acting like a Super-Legislature.

EPA is initiating major changes in national policy — changes fraught with large potential impacts on jobs and the economy. The Clean Air Act does not authorize EPA to establish or tighten fuel economy standards for new cars and trucks, yet that is effectively what it is doing. And EPA will soon be dictating fuel economy standards for aircraft, marine vessels, and non-road vehicles, even though no existing statute authorizes any agency to do that. If not stopped, EPA will eventually issue greenhouse gas performance standards for dozens of industrial categories, and could even be litigated into establishing national ambient air quality standards for greenhouse gases set below current atmospheric concentrations.

America could end up with a greenhouse gas regulatory regime more costly and intrusive than any climate bill Congress has declined to pass, or any climate treaty the Senate has declined to ratify, yet without the people’s representatives ever voting on it.

Making policy decisions of such economic and political magnitude is above EPA’s pay grade. It is above any administrative agency’s pay grade.

Our opponents claim that we seek to repeal a scientific finding, as if, like King Canute, we were trying to command the tides to halt. That’s very clever, but it’s an outrageous misrepresentation.

H.R. 910 does not repeal EPA’s endangerment finding. Rather, it repeals the Rulemaking in which EPA published its finding. H.R. 910 repeals the legal force and effect of EPA’s finding. H.R. 910 takes no position whatsoever on the validity of EPA’s reasoning or conclusions.

Opponents keep asking, ‘What is your plan’ to address climate and energy issues? That is putting the cart way before the horse. Our first order of business is to restore democratic accountability to climate policymaking. Then and only then can Congress, no longer distracted by EPA’s attempt to narrow our options and prejudge our decisions, consider these issues properly — on their merits.

Congress is a deliberative body. Sometimes Congress does not act as quickly as some Members would like. Sometimes Congress does not enact legislation that some Members support. That, however, does not authorize EPA to implement far-reaching policy changes Congress has not approved.

The legislative process is often frustrating and slow. It is supposed to be! It moderates our politics and promotes continuity in law and policy. This slow, deliberative legislative process is more valuable than any result that an administrative agency might obtain by doing an end run around it. Of all people, Members of Congress should understand this basic precept of our constitutional system.

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