Rockefeller Bill – Is It Good Enough?

Barring the trickery of a lame-duck conference committee, cap-and-trade is dead as a door nail in the 111th Congress. As you’d expect, there is much wailing and gnashing of teeth, with Obama officials, Democratic leaders in Congress, and environmental lobbyists all saying it’s all the other guy’s fault.

Columnist Darren Samuelsohn provides several juicy quotes in Politico today. My favorite is from an unnamed “exasperated Administration official who lambasted environmentalists — led by the Environmental Defense Fund — for failing to effectively lobby GOP senators”:

They spent like $100 million and they weren’t able to get a single Republican convert on the bill.

Sure, it was just a matter of poor lobbying skills! The fact that nobody knows how to power the economy with solar panels, wind turbines, and cellulosic ethanol had nothing to do with it! The fact that energy taxes kill jobs and jobless rates remain shockingly high had nothing to do with it! The blame gamers are in denial.

Having failed to snooker Senate Republicans into providing bipartisan cover for cap-and-tax, Democratic leaders must now take sole responsibility for EPA’s endangerment rule and the ensuing regulatory cascade. Waxman-Markey and most other cap-and-trade bills contained language preempting EPA regulation of greenhouse gases under various Clean Air Act provisions. The sponsors repeatedly tried to sell their bills as the only way to avoid heavier and more unpredictable regulation under the Clean Air Act.

This was always a lame sales pitch. Its success depended on Rs being too dumb to figure out that Democratic leaders were actually promising to commit political suicide rather than wielding a mighty legislative hammer. Colorado State University Prof. Roger Pielke, Jr. and the Breakthrough Institute’s Michael Shellenberger warned more than a year ago that threatening to sic EPA and eco-litigators on the economy unless Rs lined up behind cap-and-trade was a strategy that could easily backfire:

Pielke, Jr.: Republicans must be drooling over the possibility that EPA will take extensive regulatory action on climate change. Why? Because the resulting political fallout associated with any actual or perceived downsides (e.g., higher energy prices) will fall entirely on Democrats and the Obama Administration. Far from being an incentive for Congress to act on its own, the looming possibility that EPA will take regulatory action is a strong incentive for Republicans to stalemate Congressional action and a nightmare scenario for Democrats.

Shellenberger: In other words, the White House “threat” to Republicans and moderate Democrats to regulate carbon is the equivalent of threatening your enemy with suicide. (“Don’t make me raise energy prices! You’ll really be in trouble with your voters when I raise their energy prices!”)

On June 10, the Senate voted 53-47 against S.J.Res.26, Sen. Lisa Murkowski’s resolution of disapproval to overturn the legal force and effect of EPA’s endangerment rule. Had S.J.Res.26 become law, it would have stopped EPA and the trial lawyers from imposing unlegislated climate policy on the nation. President Obama threatened to veto the resolution. All 41 Senate Republicans and six Democrats voted for S.J.Res.26. It failed because 53 Democrats voted against it.

Thanks to the vote on S.J.Res.26, the Democratic leadership has become the Party of Endangerment — the party endangering America’s economic future by taking exclusive ownership of EPA’s endangerment rule and the regulatory chain reaction it has set in motion.

Unsurprisingly, congressional Democrats are now looking for a way to have their cake and eat it — claim to protect their constituents from regulatory excess while actually protecting EPA’s purloined power to make climate policy. “The time has come to prevent EPA from going forward next year with regulations on stationary sources [of greenhouse gases],” Rep. Rick Boucher (D.-Va.) told Energy and Environment News (subscription required). Other Ds are making similar noises.

Their vehicle of choice is a bill sponsored by Sen. Jay Rockefeller (D.-W.Va.), which would postpone EPA regulation of stationary sources of greenhouse gases for two years. Some key points to keep in mind.

• Most energy-intensive investments have much longer planning horizons than two years. Thus, the Rockefeller bill would leave a cloud of regulatory uncertainty hanging over the economy, deterring many firms from starting new projects this year and next. 
• To provide real protection, re-enacting the bill would have to become an annual ritual on Capitol Hill. That, however, is not something any of its sponsors indicate they intend or want to happen.
• The bill would leave the endangerment rule intact, setting the stage for money-is-no-object regulation of greenhouse gases under the National Ambient Air Quality Standards (NAAQS) program.

The Rockefeller bill’s chief purposes are not economic but political. It was designed to siphon off Democrat support from the Murkowski resolution, and it may well have provided the legislative margin of victory for the Party of Endangerment.

The bill’s main purpose now is to obscure what the vote on S.J.Res.26 made so clear — namely, which Members of Congress actually oppose regulatory excess and which do not, and which Members actually want politically accountable policymaking and which do not.

My unsolicited advice to the friends of democratic accountability in Congress is to safeguard and refresh the hard-won political clarity they achieved in the vote on S.J.Res.26. They can do this by seeking votes on amendments to toughen and improve the Rockefeller bill. Here are two obvious ideas:

1. An amendment to suspend stationary source regulation of greenhouse gases until Congress votes to remove the suspension. A vote on this amendment would clearly distinguish those who want the people’s representatives to determine climate policy from those who want non-elected bureaucrats, trial lawyers, and activist judges to be in charge.
2. An amendment to suspend stationary source regulation of greenhouse gases until the rate of unemployment falls to 5.5%.  A vote on this amendment would clearly distinguish those whose priority is to grow the economy from those whose priority is to grow EPA’s power.

What if the amendments are defeated? Congress could still pass the Rockefeller bill, which at least would put EPA on hold for two years. More importantly, even if defeated, such amendments would separate the real champions of prosperity and self-government from the pretenders.