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Does The Bush Administration Have Legal Authority To Award Regulatory Credits For Greenhouse Gas Reductions?

Issue Analysis


Does The Bush Administration Have Legal Authority To Award Regulatory Credits For Greenhouse Gas Reductions?

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This paper examines the Electric Power Industry Climate Initiative’s (EPICI’s) attempted rebuttal of the Natural Resources Defense Council’s (NRDC’s) argument that the Bush Administration has no authority, under section 1605(b) of the 1992 Energy Policy Act, to provide penalty protection or award regulatory credits to companies that reduce their emissions of greenhouse gases. The paper shows that EPICI:

·         Ignores the plain text of 1605(b), which contains no authority, explicit or implicit, to provide penalty protection or credit for early reductions;

·         Identifies no ambiguity in 1605(b), such as might be resolved in favor of penalty protection or crediting in light of statutory context or legislative history;

·         Relies almost solely on one Senator’s remarks – and misconstrues those remarks;

·         Ignores the texts of early credit legislation in the 105th and 106th Congresses, and the debates thereon;

·         Implausibly and erroneously contends that even though Congress rejected a version of 1605 that directed the Department of Energy (DOE) to establish a crediting system, it nonetheless gave DOE authority to implement such a system;

·         Confuses the discretion DOE has in implementing a reporting system with authority to establish a crediting scheme;

·         Confuses the absence of statutory prohibitions against penalty protection and early credits with a grant of legislative authority to initiate such policies; and

·         Admits in the final analysis that DOE does not really have authority to protect companies’ emission baselines or award early credits.

It is, in fact, astonishing that anyone familiar with these issues would interpret 1605(b) as EPICI does. Senators John Chafee (R-RI) and Joseph Lieberman (D-CT) introduced early credit legislation in both the 105th and 106th Congresses. Those bills were intensely controversial, and never mustered anything approaching majority support. Chafee-Lieberman gained only 12 co-sponsors in its second go-round. Representative Rick Lazio’s (R-NY) House companion bill attracted just 15 co-sponsors. Neither bill ever came to a vote in committee, much less on the House or Senate floor. The notion that Congress implicitly enacted the substance of those bills seven years earlier, in the 102nd Congress, is preposterous.

On November 18, 2002, DOE will convene the first of a series of stakeholder workshops on how to transform the 1605(b) voluntary reporting program into penalty-protection/regulatory credit program. Absent from DOE’s 15-page “Annotated Agenda of Key Issues” is any mention of legal issues. Shouldn’t the Administration at least try to demonstrate that what it wants to do is legal before inviting the public to help them do it?