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H.R. 910: How to Respond to Hostile Amendments

by Marlo Lewis on April 6, 2011

in Features

The House today votes on H.R. 910, the Energy Tax Prevention Act, as amended. The bill would stop EPA from ‘legislating’ climate policy under the guise of implementing the Clean Air Act (CAA), a statute enacted in 1970, years before global warming became a public policy issue.

Debate will last for one hour. The Rules Committee is allowing Democrats to offer twelve hostile amendments. Three Republican amendments to strengthen the bill (by, for example, prohibiting federal agencies from regulating greenhouse gases via the Endangered Species Act) were ruled out of order. As my colleague Myron Ebell notes, Democrats allowed Republicans to offer only one amendment on the Waxman-Markey cap-and-trade bill. The November 2010 elections notwithstanding, the House GOP still suffers from an acute case of  minority-itis.

The most mischievous of the Democratic amendments are:

  • Jackson Lee (TX) – #36 “Would require an EPA study to determine the long term impact of a complete ban on their authority to regulate greenhouse gases.”
  • Waxman (CA), DeGette (CO), Inslee (WA) – #5 “Would add a new section with respect to Congressional Acceptance of Scientific Findings: Congress accepts the scientific finding of the Environmental Protection Agency that climate change is occurring, is caused largely by human activities, and poses significant risks to public health and welfare.”
  • Quigley (IL) – #6 “Would require GAO to report to Congress the results of a study of the health care costs in the U.S. as affected by the elimination of EPA regulation under this Act, as compared to health care costs in the U.S. as would be affected by the EPA proceeding under their regulatory authority as determined by Massachusetts v. EPA.”
  • Markey (MA) – #12 “Would ensure that any prohibition on or limitation to EPA’s authority contained in the bill would not apply to any action EPA could take to reduce demand for oil.”
  • Rush (IL) – #39 “Would prevent the provisions of this bill from going into effect until the EPA administrator, in consultation with the Secretary of Defense, certifies that the consequences of not regulating greenhouse gas emissions, and its subsequent impact on climate change, including the potential to create sustained natural and humanitarian disasters and the ability to likely foster political instability where societal demands exceed the capacity of governments to cope, do not jeopardize American security interests at home or abroad.”
  • Kind (WI), Owens (NY) – #9 “Would codify the Environmental Protection Agency’s Tailoring Rule in order to protect farms, small businesses, and small- and medium-sized stationary sources from greenhouse gas regulation.”

These amendments have zero chance of passing, but that is not their purpose. The objective is to confuse the public by changing the subject and diverting attention from the real issue. Opponents know they cannot defend the indefensible thesis that EPA, an administrative agency, should dictate national policy on climate change. They know they cannot make a plausible case that Congress, in 1970, authorized EPA to implement a national de-carbonization program. So they offer hostile amendments in the hope of tricking Republicans into affirming controversial opinions that H.R. 910 neither presupposes nor implies. Above all, they want to create the false impression that a vote for H.R. 910 is a vote against science, public health, energy security, and national defense.

H.R. 910 supporters will surely defeat these amendments, but it is possible to win the vote and still lose in the court of public opinion. Today’s vote could be a Pyrrhic victory if H.R. 910 supporters cede the moral high ground to EPA’s apologists.

Here’s why the hostile amendments deserve to go down in flames.

Jackson Lee #36: There is no need to require EPA to study the impacts of a ban on its power to regulate greenhouse gases, because EPA’s opinions on this subject are well known, and the agency needs no encouragement from Congress to preach the alleged dangers of anthropogenic climate change. The proposed study would simply repackage EPA’s Endangerment Rule. The amendment is designed to trick Republicans into debating climate science so that Jackson Lee and her comrades can falsely but plausibly claim that a vote for H.R. 910 is a vote against climate science.

Warning to H.R. 910 supporters: Don’t take this bait! Politely remind Rep. Jackson Lee that H.R. 910 takes no position whatsoever on the scientific content of EPA’s Endangerment Rule. What supporters object to is EPA using its self-interested interpretation of science to transform itself into a Super Legislature. Repeat over and over again: “H.R. 910 does not overturn EPA’s scientific finding, it overturns the legal force and effect of the rulemaking in which EPA published its finding.” 

Much the same response applies to the Waxman, DeGette, Inslee (#5), Quigley (#6), and Rush (#39) amendments. Climate change may or may not pose significant risks to public health and welfare, increase U.S. health care costs, or endanger U.S. national security. That is irrelevant to the issue the House is debating today, namely, the constitutional impropriety of EPA regulating greenhouse gases without a plausible legislative mandate.

All the concerns raised by these amendments were raised last year — and have been raised for more than a decade — by supporters of cap-and-trade legislation. Cap-and-trade narrowly passed in the House in 2009 but died in the Senate in 2010 when the public figured out that cap-and-trade is a stealth energy tax. As presidential candidate Barack Obama acknowledged, cap-and-trade would “bankrupt” coal power plants and cause electric rates to “necessarily skyrocket.” Clearly, EPA’s greenhouse gas regulations are, in President Obama’s words, another way of “skinning the cat.” Obama administration officials said repeatedly last year that an EPA-run system would be less efficient than the Waxman-Markey bill Congress declined to pass. Congress could not possibly have authorized EPA to implement this less efficient de-carbonization program in 1970, before global warming was even a gleam in Al Gore’s eye. Congress has a constitutional duty to stop EPA’s end-run around the legislative process. That is the purpose of H.R. 910.

If Reps. Waxman, DeGette, Inslee, Quigley, and Rush really believe that EPA knows best, then they should introduce legislation authorizing EPA to implement its greenhouse regulations, try to persuade GOP chairmen to hold hearings on their legislation, and try to assemble a legislative majority in favor of their bill. They know such legislation has no chance of passing. That is why they want EPA to legislate instead of Congress. They seem to have forgotten that our constitutional system of separated powers and democratic accountability is more valuable than any policy result EPA might achieve by undermining it.

The Kind and Lee amendment (#9) would not merely codify EPA’s Tailoring Rule, it would also codify the entire ever-growing ensemble of EPA greenhouse gas regulations of which the Tailoring Rule is a part. It would put Congress’s legislative seal of approval on EPA’s seizure of legislative power. Passing this amendment would obviously defeat the constitutional purpose of H.R. 910.

Markey’s oil demand reduction amendment (#12) is perhaps the cleverest. After all, most Republicans are as alarmist about U.S. dependence on foreign oil as are most Democrats.

Here’s why Markey’s amendment deserves 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! The 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 10 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.

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