The House of Representatives is scheduled to debate and vote on final passage of H. R. 910, the Energy Tax Prevention Act.  The Rules Committee is allowing the Democrats to offer twelve amendments to weaken or gut the bill.  (It is worth recalling that on 26th June 2009, the Democrats allowed only one Republican amendment and couldn’t even provide an accurate copy of the bill, since 300 pages had been added in the middle of the night, but the new sections hadn’t been put in their proper places in the 1200 page bill that had been released four days before.)  No Republican amendments to strengthen to the bill will be allowed.  The rule can be found here.  It is quite possible that the vote on final passage will be delayed until tomorrow.

Senate Majority Leader Harry Reid (D-NV) has scheduled votes on amendments offered by Sens. Mitch McConnell (R-KY), Jay Rockefeller (D-WV), Max Baucus (D-MT), and Debbie Stabenow (D-MI) amendments to S. 493, a re-authorization bill for small business subsidies, for some time after 4 PM today.  The McConnell amendment is the Senate version of the Energy Tax Prevention Act, S. 482.  The other amendments are attempts to give some ground without blocking EPA regulation of greenhouse gas emissions permanently (that is, until Congress authorizes such regulations).  This shows how far the debate has shifted.  It appears that the three straddling amendments may each get fifteen to thirty votes.  It appears that the McConnell amendment (#183) will get 51 or perhaps even 52 votes, but will not be adopted because it is not a germane amendment and therefore requires 60 votes to survive a point of order.  All 47 Republicans are expected to vote for it plus Sens. Joe Manchin (D-WV), Mary Landrieu (D-LA), Ben Nelson (D-NE), and Mark Pryor (D-AR).  Maybe one more Democrat, such as Sen. Claire McCaskill (D-MO).  Senate Majority Leader Harry Reid could of course still change his mind.

The White House yesterday sent a veto threat to the Hill yesterday.  The full statement can be found here, although this excerpt aptly summarizes the President’s position.

“If the President is presented with this legislation, which would seriously roll back the CAA authority, harm Americans’ health by taking away our ability to decrease carbon pollution, and undercut fuel efficiency standards that will save Americans money at the pump while decreasing our dependence on oil, his senior advisors would recommend that he veto the bill.”

This indicates two things: that passage is becoming a real possibility; and that the White House is sending a message that some House Democrats who want to get re-elected can vote for it in the knowledge that the White House is standing by to save them from the consequences.

After today’s votes, the next step will be to attach H. R. 910 / S. 482 to a vehicle that the President will have a hard time vetoing.  Did anyone say debt ceiling?

Update [5:45 PM]: The Senate Votes Are in

McConnell amendment (Inhofe’s Energy Tax Prevention Act, S. 482): 50 Yes, 50 No.

Rockefeller amendment: 12 Yes, 88 No.

Stabenow amendment: 7 Yes, 93 No.

Baucus amendment: 7 Yes, 93 No.

Democrats Voting Yes on the McConnell amendment:

Joe Manchin of West Virginia
Mary Landrieu of Louisiana
Ben Nelson of Nebraska
Mark Pryor of Arkansas

Republicans Voting No on the McConnell amendment:

Susan Collins of Maine

Is the public clamoring for more EPA regulation?

That’s what Sen. Barbara Boxer (D-Calif.) claimed yesterday in a speech on the Senate floor (Congressional Record, pp. 1955-57) denouncing S. 493, the McConnell amendment/Inhofe-Upton Energy Tax Prevention Act, which would stop EPA from ‘legislating’ climate policy.

Boxer cited a poll finding that 69% of Americans believe “EPA should update Clean Air Act standards with stricter pollution limits.” Of course, most people want cleaner air in the abstract. That tells us nothing about how much those same people are willing to pay for cleaner air, or what other public priorities (e.g. affordable energy, job creation) they are willing to sacrifice or put at risk. In the abstract, most people also support a balanced budget.  But that does not necessarily mean they want Congress to cut their favorite programs or raise taxes. Without meaning to, people can easily “lie” to a pollster (see the accompanying cartoon).

In an earlier post today, I note that in the November 2010 elections, voters punished lawmakers pushing the EPA-Obama-Boxer stealth energy tax agenda formerly known as cap-and-trade. Elections are the most relevant “poll” for guiding legislative deliberations.

Maybe Boxer thinks she has more up-to-date information about public attitudes. But a very recent opinion survey conducted by the Tarrance Group directly contradicts the poll Boxer cites. Here are the results, as summarized in the Tarrance Group’s March 30, 2011 press release:

The Tarrance Group is pleased to present Public Notice with the key findings from a survey of N=800 registered “likely” voters across the country. Interviews were conducted March 27-29, 2011. In 95 out of 100 cases, the margin of error on a sample of this type is +/- 3.5%.
KEY FINDINGS
- Support is low for more environmental regulations on businesses. Only 40% says there should be more, while a majority (53%) says the level of regulations should remain where it is now (28%) or there should be less (25%).
- Americans believe small businesses will feel the impact of new regulations, with 73% agreeing that “government regulations hit small businesses much harder than big corporations.”
- The American worker is also seen as receiving a hit from more regulation, with 59% agreeing that “additional federal regulation on businesses put the average American worker at risk of job loss.” Also, a majority (56%) agree that “additional environmental regulation has a negative impact on local communities through tax increases and job loss.”
- There is a perceived impact on jobs from increased regulation, as three quarters (75%) agree that “if regulations make it too expensive to keep jobs in America, businesses will continue to move overseas where there are much lower labor and environmental standards.” Also, a majority (53%) agree that “additional environmental regulation makes American companies less competitive than foreign companies.”
- Americans also believe regulations have an impact on their pocketbook. Nearly three quarters (72%) agree that “additional environmental regulation increases the price of energy for things like gasoline and electricity.” Another 68% agree that “more environmental regulation increases the price of everyday items like food and clothing.”
- Voters prefer new regulation be enacted through Congress, as 64% agree that “no new expensive regulation of business should be allowed without first getting approval from Congress.”
- Voters throughout the country remain focused on jobs and the economy, with 34% saying this is the issue Congress should be focused on right now. Another 17% say government spending is the most important issue, while only 2% say “climate change and the environment” is the top issue.

Yesterday, Sen. Barbara Boxer (D-Calif.) mounted a tirade (Congressional Record, pp. 1955-57) against the McConnell amendment (a.k.a. S. 482, the Inhofe-Upton Energy Tax Prevention Act) to the small business reauthorization bill (S. 493). The amendment 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 emerged as a public policy issue.

The Senate is expected to vote later today on S. 493, so it worthwhile examining Boxer’s speech, which opponents of the bill will undoubtedly recycle in today’s debate.

I discuss the rhetorical traps S. 482 supporters should avoid in an earlier post. Stick to your moral high ground, namely, the constitutional premise that Congress, not an administrative agency with no political accountability to the people, should make the big decisions regarding national policy. The fact that Congress remains deadlocked on climate and energy policy is a compelling reason for EPA not to ‘enact’ greenhouse gas (GHG) controls. It is not an excuse for EPA to substitute its will for that of the people’s representatives.

Okay, that said, let’s examine Boxer’s rant. It is lengthy, repetitive, and often ad homonym, so I’ll try to hit just the main points.

Boxer: S. 482 would “stop the Environmental Protection agency forever from enforcing the Clean Air Act as it relates to carbon pollution.”

She begs the question. How does the CAA “relate” to carbon pollution? The CAA never mentions “greenhouse gases,” “greenhouse effect,” or “global climate change.” It mentions carbon dioxide (CO2) only once — Sec. 103(g) — a provision authorizing EPA to “develop, evaluate, and demonstrate non regulatory strategies for air pollution prevention” (emphasis added). Lest any trigger-happy EPA regulator see the words “carbon dioxide” and go off half-cocked, Sec. 103(g) concludes with an admonition: “Nothing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements.”

Boxer: “This [S. 482] is a first of a kind. It has never been done. It is essentially a repeal of the Clean Air Act as it involves one particular pollutant, carbon, which has been found to be an endangerment to our people.”

Again, the only provision in the CAA “as it involves” CO2 admonishes EPA not to regulate.

Boxer: “I guess the question for us as a body is, Whom do we stand with, the biggest polluters in America or the American people, 69 percent of whom said in a bipartisan poll: ‘EPA should update Clean Air Act standards with stricter air pollution limits.’’’

The folks Boxer is pleased to call “polluters” are also energy producers and job creators.

The poll she invokes is meaningless. Everybody is for cleaner air in the abstract. That tells us nothing about how much they are willing to pay for it, or what other public priorities (e.g. affordable energy, job creation) they are willing to sacrifice or put at risk. Far more relevant for Congress is the November 2010 elections. Voters punished lawmakers who supported the stealth energy tax formerly known as cap-and-trade. By threatening to sic EPA on CO2 emitters if Congress did not enact cap-and-trade, Team Obama tacitly acknowledged that EPA’s GHG regulations are less efficient, less predictable, and potentially more costly than the Waxman-Markey bill they could not sell to Congress and the public.

[Update: In a Mar. 27-29, 2011 survey by the Tarrance Group of 800 likely registered voters, 64% agree that "no new expensive regulation of business should be allowed without first getting approval from Congress," and a majority (53%) say that the level of environmental regulation should remain where it is now (25%) or there should be less (28%).]

Boxer: “Mr. President, 69 percent believe ‘EPA scientists, not Congress, should set pollution standards.’ But we have Senators playing scientist, putting on their white coats, deciding what EPA should do, when it ought to be based on science.”

S. 482 takes no position one way or the other on climate science. Nor would it put Congress in charge of setting pollution standards. Rather, S. 482 simply affirms that Congress, not EPA, should decide national policy on climate change.

Note also the biased phrasing (“EPA scientists”) of the poll question Boxer quotes. EPA and its apologists would have us believe that the agency is an apolitical honest broker — a gathering of scientific elders who seek only truth and care not for their agency’s power, prestige, and budget, and act in splendid isolation from the policy preferences and agendas of the environmental movement. Dream on!

Although there are surely honest people at the agency, EPA is not an honest broker. EPA is a major stakeholder, a big dog in the fight. Boxer ignores the massive conflict of interest that Congress, wittingly or otherwise, built into the CAA. The same agency that makes endangerment findings gets to regulate based on such findings. EPA therefore has an organizational interest in interpreting the science in ways that expand its power. This ethically flawed situation was tolerable when EPA confined itself to regulating substances that Congress authorized EPA to regulate (ambient air pollutants, toxic air pollutants, acid rain precursors, ozone depleting substances). But, to repeat the obvious fact that Boxer studiously avoids, Congress never told EPA to regulate the class of substances known as “greenhouse gases.”

Boxer: “What is the science telling us? That it is dangerous to breathe in air pollution with lots of carbon in it.”

Got that? In the same breath that Boxer scolds her GOP colleagues for not heeding science, she demonstrates her ignorance of science.  Carbon dioxide, like water vapor, the atmosphere’s main greenhouse gas, is an essential constituent of clean air.

S. 482 supporters please note: The oft-repeated phrase “carbon pollution” is meant to mislead the public. It embodies one of the oldest rhetorical tricks in the book, which is to call something benign or even beneficial by a name commonly given to something odious. When EPA’s apologists deliberately confuse CO2 with air pollution and denounce S. 482 as the “dirty air act,” they tacitly confess that they cannot sell global warming policy on its own merits.

Boxer: “Every single time we try to rein in pollution, special interests say: No, no, no, a thousand times no. We will stop growth. We will stop jobs. We will kill the economy. It is awful, awful, awful. Let me give one economic fact: If you can’t breathe, you can’t work. Here is a picture of a little girl suffering, struggling. I urge my colleagues who support Senator McConnell to look at this. They are not here, but maybe on TV they will. Look at this picture. Is that what we want for her future?”

This is either sheer demagoguery or invincible ignorance. Let me count the ways: (1) Boxer provides not one scrap of evidence that the child in the picture would not have asthma or would not have to wear a respirator if EPA adopts tougher controls on air pollution. (2) S. 482 in no way restricts EPA from issuing regulations targeting ozone, particulate matter, or other pollutants that affect respiratory function. (3) Air pollution will continue to decline even if EPA were to freeze current regulations in place because newer, cleaner vehicles and equipment will continue to replace older models and capital stock. (4) Air pollution at today’s historically low levels is not likely a major factor in childhood asthma. As Joel Schwartz and Stephen Hayward observe (see Chapter 7 of their book, Air Quality in America), air pollution has declined as asthma has been rising, and hospital visits for asthma are lowest in July and August, when ozone levels are highest.

Boxer: “If I went up to you and I said: If you know something worked perfectly well, would you mess with it? Would you change it? No. Why would you, if it is working well?”

The CAA may not be perfect, but it was certainly working better before EPA started to mess with it. As EPA itself confesses, regulating GHGs via the CAA leads to “absurd results” — policy outcomes that conflict with and undermine congressional intent. EPA and its state counterparts would have to process an estimated 81,000 preconstruction permit applications per year (instead of 280) and 6.1 million operating permits per year (instead of 15,000). The permitting programs would crash under their own weight, crippling both environmental enforcement and construction activity while exposing millions of non-permitted firms to new litigation risks. A more potent Anti-Stimulus Program would be hard to imagine. This is not what Congress authorized when it enacted the CAA in 1970, nor when it amended the statute in 1977 and 1990.

To avoid such “absurd results,” EPA issued its so-called Tailoring Rule, which revises CAA definitions of “major emitting facility” to exempt all but very large CO2 emitters from the permitting programs. But this just substitutes one absurdity for another.

“Tailoring” is bureaucrat-speak for “amending.” To avoid breaking the CAA beyond repair, EPA must play lawmaker, flout the separation of powers, and effectively rewrite portions of the statute. Nothing in the CAA authorizes EPA to revise the text in order to avoid an administrative debacle of its own making.

One would think that a Senator might be jealous of the authority exclusively vested in Congress by the Constitution. But no, Boxer is eager to have EPA ‘legislate’ climate policy and ‘amend’ the CAA provided the agency implements an anti-carbon agenda the Senate has repeatedly declined to pass.

How many agencies does it take to regulate fuel economy?

Only one — the National Highway Traffic Safety Administration (NHTSA) — if we follow the law (1975 Energy Policy and Conservation Act, 2007 Energy Independence and Security Act); three — NHTSA + EPA + the California Air Resources Board — if law is trumped by the backroom, “put nothing in writing,” Presidential Records Act-defying deal negotiated by former Obama Environment Czar Carol Browner.

Tomorrow, the Senate is expected to vote on S. 493, the McConnell amendment, which is identical to S. 482, the Inhofe-Upton Energy Tax Prevention Act. S. 493 would overturn all of EPA’s greenhouse gas (GHG) regulations except for the GHG/fuel economy standards EPA and NHTSA jointly issued for new motor vehicles covering model years 2012-2016, and the GHG/fuel economy standards the agencies have proposed for medium- and heavy-duty trucks covering model years 2014-2018. The legislation would leave intact NHTSA’s separate statutory authority to regulate fuel economy standards for automobiles after model year 2016 and trucks after model year 2018.

Bear in mind that GHG emission standards and fuel economy standards are largely duplicative. As EPA acknowledges, 94-95% of all GHG emissions from motor vehicles are carbon dioxide (CO2) from the combustion of motor fuels. And as 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” (Joint GHG/Fuel Economy Rule, p. 25327).

The National Auto Dealers Association (NADA), whose members know a thing or two about what it takes to meet the needs of the car-buying public, sent a letter to the Senate today urging a “Yes” vote on S. 493. NADA stresses three points. S. 493 would:

• End, after 2016, the current triple regulation of fuel economy by three different agencies (NHTSA, EPA, and California) under three different rules.
• Restore a true single national fuel economy standard under the CAFE program, with rules set by Congress, not unelected officials. Ensure jobs, consumer choice, and highway safety are considered according to federal law when setting a fuel economy standard.
• Save taxpayers millions of dollars by ending EPA’s duplicative fuel economy regime after 2016.

Let’s examine the first two points in a bit more detail. The NADA letter says:

The McConnell amendment would restore the statutory clarity that was lost in 2009 when EPA allowed states to begin regulating fuel economy by granting California a waiver from preemption under the Clean Air Act for its fuel economy/greenhouse gas rules, and when EPA elected to also regulate fuel economy as part of its voluntary response to the remand in Massachusetts v. EPA by the U.S. Supreme Court. The McConnell amendment would reestablish the historical system of a single national fuel economy standard, once the triple regulation of fuel economy embodied in the National Program has run its course after model year 2016.

What NADA calls the “historical system” is also the statutory system. The Clean Air Act provides no authority to any agency to regulate fuel economy. A completely separate statute, the 1975 Energy Policy and Conservation Act (EPCA), authorizes EPA to monitor compliance with federal fuel economy standards (49 U.S.C. 329). The same statute authorizes the Department of Transportation, not EPA, to prescribe fuel economy standards.

The NADA letter also handily shoots down the falsehood that S. 493 would “massively increase America’s oil dependence”:

The [NHTSA-administered] CAFE [corporate average fuel economy] program alone provides virtually all of the fuel economy increases/GHG reductions in the current National Program, since raising the fuel economy of a vehicle automatically reduces its GHG emissions. EPA’s rule provides only minor incremental GHG reductions by also regulating vehicle air conditioners. To our knowledge, EPA has never offered any evidence demonstrating that giving credits to automakers for installing improved air conditioners after 2017 would save, as EPA claims, “hundreds of millions of barrels of oil.” To the contrary, under EPA’s MY 2012-2016 rule, air conditioning credits are extended to automakers primarily for switching to coolants that are less greenhouse gas intensive, which has a negligible impact on oil savings.

Opponents assert that S. 493 would harm the auto industry. That defies common sense. Opponents “fail to explain how being regulated by three different fuel economy programs with three different sets of rules administered by three different agencies pursuant to three different laws is more beneficial than a single national fuel economy standard.”

My organization, the Competitive Enterprise Institute (CEI), has long argued that fuel-economy regulation per se is bad policy because it restricts consumer choice, increases vehicle cost, and, most importantly, literally kills people.

Fuel economy standards inevitably induce automakers to decrease average vehicle size and weight. Lighter cars have less mass to absorb collision forces. Smaller cars provide less space between the occupant and the point of impact. The National Academy of Sciences found that in 1993 (a typical year), CAFE-induced downsizing contributed to an additional 1,300-2,600 fatalities and 13,00-26,000 serious injuries.

As long as we’re stuck with fuel economy regulation, however, the agency setting the standards should be the one required by law to consider all adverse unintended consequences. That agency is NHTSA, not EPA:

When setting a fuel economy standard, NHTSA considers job loss, consumer choice, consumer acceptability, and highway safety. Congress mandated that NHTSA consider these important factors to ensure that fuel economy increases do not needlessly put people out of work or limit sales of certain types of vehicles. This balancing of protections for workers, consumers, and highway safety is not replicated in the Clean Air Act, as that statute was not designed to regulate fuel economy. Passage of the McConnell amendment would ensure that jobs and highway safety are given the consideration Congress mandated.

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.

My guess is that they can’t quite get to 60.  It might be worth a vote if it fails narrowly because then we would know who needs encouragement.  But if it’s going to fall short, the better outcome in my view would be to pull the amendment, wait for an overwhelming House vote to build momentum, and then provide encouragement to a lot of Senators for a vote later this year.  But that’s just my view.  There’s quite a bit that we don’t know, and in the end it will be up to McConnell and Reid