A New York Times editorial last Saturday called on the United States Senate to take an early lesson from the Gulf oil spill catastrophe and move comprehensive energy and pollution legislation. This seems like a no-brainer, and Congress should complete the task of addressing energy independence comprehensively in a way that makes both fiscal and environmental sense for the nation, while promoting energy independence. But one paragraph of the editorial recommended a misstep, which seems to reflect a lack of understanding on the part of the Times of the regulatory task that the Senate is trying to deal with. The Senate leaders of the comprehensive energy legislation — Senators Kerrey, Lieberman, and Graham — all recognize that the Clean Air Act in its present form is not suited to address pollutants such as greenhouse gases, and that is one of the problems their legislation is trying to solve. Yet, the Environmental Protection Agency is pressing mightily to push a square peg through a round hole with a series of rulemakings under the Clean Air Act to regulate greenhouse gases. This week, Senator Murkowski's resolution of disapproval of EPA's regulatory undertaking will face a vote in the Senate. Senator Murkowski's resolution, or some close variant of it, needs to be taken seriously, if only in the name of regulatory common sense, not as a check on further, more sensible efforts to regulate greenhouse gases.
The Times' editorial took the Senate to task for not being energized enough to advance comprehensive legislation, and instead voting "on a measure that would move the country in exactly the wrong direction — a resolution sponsored by Lisa Murkowski, the Alaska Republican, that would undercut the government’s authority to regulate greenhouse gases and reduce the anticipated oil savings from the tough new fuel economy standards the White House announced last April." But the proposed comprehensive legislation is aimed, in part, to do just what the Times says the Senate should not — fix the Clean Air Act problem. To my knowledge, there is no one that is opposing the EPA's new fuel economy standards. What is being opposed is a regulatory misfit between the Clean Air Act and regulating greenhouse gases from stationary sources, which has the potential to impose some huge permitting costs on small emitters, a cost that would be huge for US manufacturing employers. Even EPA recognizes this issue, but most who have studied EPA's regulatory proposals believe that EPA lacks the legal authority to fix that problem. The Senate needs to step forward in the name of regulatory common sense and the national interests and put a brake on EPA's current regulatory effort, while steering toward a more sensible regulatory framework.