The House Energy and Commerce Committee on Tuesday marked up and passed H. R. 910, the Energy Tax Prevention Act, by a 34 to 19 vote. All 31 Republicans on the committee supported Chairman Fred Upton’s (R-Mich.) bill. They were joined by three Democrats—Representatives John Barrow (D-Ga.), Jim Matheson (D-Utah), and Mike Ross (D-Ark.).
The mark-up started on Monday afternoon with opening statements from members of the committee and then lasted most of Tuesday. A number of amendments offered by Democrats were variations on the theme that the Congress accepts that global warming science is settled and that it’s a crisis. All these amendments were defeated easily, but, as my CEI colleague Marlo Lewis points out, Republican supporters of the bill for the most part didn’t defend the bill very well against the Democrats’ attacks.
What the proponents should argue, but did not in committee mark-up, is that H. R. 910 is not about the science or what we should do about potential global warming. The bill simply says that the EPA cannot use the Clean Air Act to regulate greenhouse gas emissions until the Congress authorizes it to do so. Chairman Upton’s bill is designed to re-assert congressional authority to make laws (which the Constitution gives Congress the sole authority to do) and rein in an out-of-control executive branch.
Speaker John Boehner (R-Ohio) has said that passing the Upton bill is a priority. It is now expected that the bill could be debated on the House floor as soon as the week of 27th March. On 26th June 2009, the House Democratic leadership railroaded the mammoth Waxman-Markey cap-and-trade bill through the House in a single day of debate with only one Republican amendment allowed to be offered. The Republican leadership under Boehner is doing things differently, so there will probably be several days of debate with numerous amendments considered. The bill should pass easily, with almost unanimous Republican and significant Democratic support.
Keith Bradsher and Hiroko Tabuchi report in the New York Times today:
Years of procrastination in deciding on long-term disposal of highly radioactive fuel rods from nuclear reactors are now coming back to haunt Japanese authorities as they try to control fires and explosions at the stricken Fukushima Daiichi Nuclear Power Station.
Some countries have tried to limit the number of spent fuel rods that accumulate at nuclear power plants: Germany stores them in costly casks, for example, while China sends them to a desert storage compound in the western province of Gansu. But Japan, like the United States, has kept ever-larger numbers of spent fuel rods in temporary storage pools at the power plants, where they can be guarded with the same security provided for the plants.
Now those temporary pools are proving the power plant’s Achilles’ heel, with the water in the pools either boiling away or leaking out of their containments, and efforts to add more water having gone awry. While spent fuel rods generate significantly less heat than newer ones do, there are strong indications that some fuel rods have begun to melt and release extremely high levels of radiation.
The reason why the United States stores spent fuel rods on site is because Senate Majority Leader Harry Reid (D-Nev.) has been able to block building the Yucca Mountain nuclear depository in Nevada for years. In 2009, President Barack Obama cancelled Yucca Mountain entirely.
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The Senate may vote today on the McConnell Amendment to S. 493. The amendment is identical to S. 482, the Energy Tax Prevention Act, which was passed out of the House Energy and Commerce Committee yesterday evening, with bipartisan support. The legislation would revoke the EPA’s authority to regulate greenhouse gases under the Clean Air Act.
Although this looked like a long shot when Senator Minority Leader Mitch McConnell (R-KY) surprised everyone by offering it yesterday, the Democratic leadership realized late yesterday afternoon that they might lose. That’s when Senator Jay Rockefeller (D-WV) introduced his two-year delay bill as an amendment. That has fallen flat. The outcome appears to be in doubt this morning. There could be a vote and McConnell’s amendment could pass narrowly. There could be a vote and the amendment could fail narrowly. There could be a deal on all the amendments pending and the amendment could be withdrawn as part of the deal. McConnell could pull the amendment because it’s going to fail. Senate Majority Leader Harry Reid (D-NV) could pull the bill from the floor because the amendment is going to pass.
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The House of Representatives took the first step on Thursday toward reclaiming its authority to regulate greenhouse gas emissions. The Energy and Power (yes, that really is its name) Subcommittee of the Energy and Commerce Committee marked up and passed H. R. 910, the Energy Tax Prevention Act, which is sponsored by Committee Chairman Fred Upton (R-Mich.) and Subcommittee Chairman Ed Whitfield (R-Ky.). H. R. 910 would pre-empt EPA from regulating greenhouse gas emissions using the Clean Air Act unless and until explicitly authorized to do so by Congress.
Actually, there was no marking up. The Democrats opposed to the bill offered no amendments, and the bill was passed on a voice vote. The full Committee has scheduled a mark-up of the bill next Monday and Tuesday. That means H. R. 910 could come to the House floor by early April. There is no doubt that it will pass the House by a wide margin. The only question is how many Democrats will end up voting for it. My guess is that quite a few Democrats are worried about getting re-elected and will therefore vote for it.
The subcommittee meeting was one long whine by minority Democrats. Rep. Henry Waxman (D-Beverly Hills), the ranking Democrat on the full committee and chief sponsor of the Waxman-Markey cap-and-trade bill that failed in the last Congress, said that H. R. 910 would codify science denial. Rep. Ed Markey (D-Mass.) chimed in that he was worried the Republicans would try to repeal the law of gravity. Rep. Jay Inslee (D-Wash.) instead thought that Republicans were trying to repeal the first law of thermodynamics and cause children all over the world to get asthma.
Preventing asthma is now the principal reason brought forward by the global warming alarmists in Congress to cripple the U. S. economy with energy-rationing regulations. Here is what I learned from a ninety-second internet search: “The majority of people with asthma notice that cold, dry air causes more symptoms than mild-temperature or hot, humid air.” Of course, some of the world’s most eminent climate scientists have recently found that global warming is causing a lot of cold weather.
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Senator John Barrasso (R-Wyo.) plans to introduce a bill early next week to prohibit the regulation of greenhouse gas emissions using existing legal authority, such as the Clean Air Act. It is my understanding that the bill will not overturn the deal on Corporate Average Fuel Economy standards for cars and light trucks that the Obama Administration negotiated in secret with the State of California and the automakers. However, it will block any future Clean Air Act waivers for greenhouse gas emissions, so that California won’t be able to do the same trick again after the new CAFÉ standards go into effect in 2016.
It remains to be seen whether Senator Barrasso’s bill will have any Democratic co-sponsors. It has been rumored that freshman Senator Joe Manchin (D-WV) has decided not to co-sponsor the bill. If true, then Senator Manchin is already retreating from his tough talk in the campaign. He certainly won’t be living up to the television commercial that got him elected in which he is seen shooting a bullet through the cap-and-trade bill.
This shouldn’t be too surprising. The Senate Democratic leadership and the White House are probably leaning hard on Manchin. Majority Leader Harry Reid (D-Nev.) on Thursday announced committee assignments for the 112th Congress. Manchin was given a seat on the Energy and Natural Resources Committee. It would be cynical to suggest that there is any connection between that and deciding not to co-sponsor the Barrasso bill.
Three events last week demonstrated that the EPA’s new regulation to reduce greenhouse gas emissions from large stationary emitters such as power plants is not the only tool being employed to strangle the economy. There’s also the Clean Water Act, the Endangered Species Act, and Corporate Average Fuel Economy or CAFÉ standards.
First, the Clean Water Act
The EPA last Thursday announced that they were going to force the Corps of Engineers to revoke an already granted Section 404 permit to Arch Coal’s Spruce Fork Mine, which is an operating surface coal mine in West Virginia. The New York Times and the Wall Street Journal articles repeated the EPA’s ludicrous claim that new scientific research since the permit was granted in 2007 shows that surface mining will have much more detrimental environmental and health effects than previously thought. My CEI colleague William Yeatman has written about this issue here, and CEI sent out a press release criticizing the decision. EPA’s revocation of a permit that has already been granted for a mine that is already in operation is outrageous. The consequences could be catastrophic if this precedent scares away investors in future energy projects because of the risk that their investment could be lost by the retroactive revocation of an operating permit.
Second, the Endangered Species Act
The polar bear was listed as a threatened species by President George W. Bush’s Secretary of the Interior Dirk Kempthorne in 2008. Last month, President Obama’s Interior Department designated 187,000 square miles in the Chukchi and Beaufort Seas off Alaska’s north coast as critical habitat. Interior also explained that the designation of critical habitat would require more environmental scrutiny of offshore oil and gas exploration and production, but that it would not be used to ban drilling. The Center for Biological Diversity last Thursday announced that they would file suit in federal court to force Interior to ban all oil and gas drilling within the critical habitat designation. This is a game that has often been played by environmental pressure groups working with their allies in the executive branch (and often those allies were formerly employed by environmental pressure groups). Interior Secretary Ken Salazar can claim that he is trying to be reasonable and to balance environmental and economic interests, but will then probably reach a settlement with the Center for Biological Diversity to ban some or all drilling in the designated critical habitat. Once the court approves, the settlement will have the force of law and will be nearly impossible to overturn.
Third, CAFÉ standards
In 2009, the Obama Administration did a deal with the State of California and the auto industry. The auto industry thought they were getting some mythical beast called “regulatory certainty” in return for agreeing to a CAFÉ standard of 35.5 miles per gallon for cars and light trucks by 2016. First, EPA said last fall that they were considering raising that to up to 62 miles per gallon by 2025. Now, the California Air Resources Board is making sounds that it wants to control the process by setting its own higher standards beginning in 2017, which would precipitate the same mess that the auto industry assumed they had alleviated with their 2009 deal over the California Waiver. So this week the Alliance of Automobile Manufacturers sent a letter to Rep. Darrell Issa (R-Calif.), the new Chairman of the House Oversight and Government Reform Committee, and Rep. Fred Upton (R-Mich.), the new Chairman of the House Energy and Commerce Committee, asking for help.
I don’t have much sympathy for the automakers because they were warned that this is what would happen (I know because I and my colleagues at CEI were among those warning them publicly), but it needs to be kept in mind that the ultimate victims will be consumers who want to buy cars.
Here is the lineup so far for House committees with jurisdiction over energy, energy-rationing, and global warming policy. Rep. Fred Upton (R-Mich.) is the new Chairman of the House Energy and Commerce Committee. Rep. Henry Waxman (D-Beverly Hills), who was the Chairman in the 111th Congress, is now the Ranking Democrat. The Energy and Environment Subcommittee will be chaired by Rep. Ed Whitfield (R-Ky.). The Democrats have not yet picked their ranking member for the subcommittee.
The new Chairman of the House Natural Resources Committee is Rep. Doc Hastings (R-Wash.), and the ranking Democrat is Rep. Ed Markey (D-Mass.), of Waxman-Markey fame. Rep. Doug Lamborn will chair the Energy and Mineral Resources Subcommittee. Again, the Democrats have not yet picked their subcommittee ranking members.
Rep. Ralph Hall (R-Tex.) will chair the Science, Space, and Technology Committee. The ranking Democrat will be Rep. Eddie Bernice Johnson (D-Tex.). Chairman Hall has not yet announced his pick to chair the Energy and Environment Subcommittee. On the Appropriations Committee, Rep. Hal Rogers (R-Ky.) is the new the Chairman and Rep. Norm Dicks (D-Wash.) is the new Ranking Democrat. Rep. Darrell Issa will chair the Oversight and Government Reform Committee, while Rep. Elijah Cummings (D-Md.) is the new ranking Democrat.
The Senate, as is usually the case, is taking longer to organize itself.
The 112th Congress was sworn in on Wednesday, and Rep. John Boehner (R-Ohio) was elected Speaker of the House. Nineteen Democrats voted against Rep. Nancy Pelosi (D-San Francisco), which is extraordinary when you consider that Pelosi as Minority Leader still controls committee assignments for her party’s members. The House began Thursday by reading the Constitution (my thoughts on that may be found here), which surprised me by causing a lot of foaming at the mouth on the left. Later that morning, Senator Barbara Boxer (D-Marin County), who remains Chairman of the Environment and Public Works Committee, held a press conference during which she vowed to block any attempt to prohibit or delay the EPA from regulating greenhouse gas emissions using the Clean Air Act.
Boxer may be very busy. The hottest item of the first week of the new Congress was introducing a bill to block EPA. Rep. Marsha Blackburn (R-Tenn.) along with 45 co-sponsors re-introduced her bill (H. R. 97) to remove greenhouse gas emissions from the list of things that can be regulated under the Clean Air Act. Rep. Shelley Moore Capito (R-WV) introduced a bill to delay EPA from regulating greenhouse gas emissions for two years. This is similar to the bill that Senator Jay Rockefeller (D-WV) introduced last year and announced this week that he would re-introduce in the 112th Congress. And Rep. Ted Poe (R-Tex.) introduced a bill to prohibit any funding to be spent on implementing or enforcing a cap-and-trade program to reduce greenhouse gas emissions.
Representative Fred Upton (R-Mich.), the incoming Chairman of the House Energy and Commerce Committee, and Tim Phillips, president of Americans for Prosperity, published an op-ed in the Wall Street Journal on December 28 on “How Congress Can Stop the EPA’s Power Grab.” They mention that, “The best solution is for Congress to overturn the EPA’s proposed greenhouse gas regulations outright.” However, most of their article discusses two more limited alternatives. Upton and Phillips favor delaying EPA until the court cases challenging EPA’s legal authority are decided over the proposal originally made by Senator Jay Rockefeller (D-WV) for a two-year delay. They call a two-year delay arbitrary and express some confidence that the federal courts are going to find that EPA lacks legal authority to regulate greenhouse gas emissions.
I believe their confidence is misplaced. There is a long history of federal courts deferring to the EPA as long as the EPA is asserting broader regulatory authority. What worries me more is that Upton and Phillips seem to be implying that if the federal court tells EPA that they can go ahead and regulate, then Upton and Phillips will be happy and the Congress should be happy with that outcome. It seems to me that a senior Member of Congress should be arguing that it is up to Congress to decide whether and how to regulate greenhouse gas emissions and therefore that the court’s decision is irrelevant. Moreover, as a matter of political strategy, I think it is dangerous for the Congress to wait for a court decision before acting. If the court allows regulation under the existing Clean Air Act, then environmental pressure groups will use that as an argument against any attempt in Congress to block or limit EPA.
The Environmental Protection Agency sprang two surprises last week. First, EPA asked a federal judge to allow them to delay issuing the boiler MACT (Maximum Available Control Technology) rule until April 2012, which would give EPA time to reconsider and rewrite the proposed regulation. The rule is designed to cut air pollution from approximately 200,000 industrial boilers, process heaters, solid waste incinerators, etc. Industrial users of boilers have made a good case that the proposed standards were going to be impossible to meet in many cases.
Next, EPA announced that the ozone or smog rule would be delayed until July 2011, while it reconsidered the scientific and health studies on smog’s effects. The announcement suggests that EPA has bowed to intense opposition from Congress, state and local governments, and industry and is now going to re-write the smog rule so that it is less economically catastrophic. EPA nonetheless is going ahead with regulating greenhouse gas emissions from major stationary sources on January 1, 2011. There is little reason to think that those regulations are any less damaging than the smog rule.
The EPA also announced last week that it was holding its second National Bed Bug Summit meeting in early February. You may laugh, but at least with bed bugs EPA is addressing a real environmental health problem.
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