Voting Down a 'Murky' Resolution

by Daniel Farber

June 11, 2010

 

Cross-posted from Legal Planet.

On Thursday, the Senate voted down a resolution from Sen. Lisa Murkowski’s (R-AK) to halt EPA regulation of greenhouse gases. The vote was 53 to 47.  What are we to make of the vote?

The resolution was offered under the Congressional Review Act, which provides a fast-track mechanism for Congress to override agency regulations.  (The CRA, which was part of the Contract with America in the 1990s,  is a substitute for the kinds of “legislative vetoes” that the Supreme Court has found to be unconstitutional.  There’s a detailed discussion in this law review note.)  You may recall that EPA’s endangerment finding was made after the Supreme Court held that, if climate change endangers human health or welfare, EPA has a duty to make a finding to that effect and to regulate greenhouse gases.  In effect, the Murkowski resolution would amend the Clean Air Act to reverse the Supreme Court’s interpretation of the statute and exempt greenhouse gases from regulation.

David Doniger has posted a thorough analysis of Murkowski’s arguments.  The attorney generals of  11 states also posted a letter opposing the resolution.

It seems plain that, despite her claims to the contrary, the resolution was aimed at preventing any action on climate change, whether by EPA or Congress, not just at shifting the decision-making to Congress. Regulation by EPA may not be ideal, but without the threat of EPA regulation, it’s even less likely that the Senate will shoulder its responsibilities to make climate policy.  Still, Senators could vote for the resolution while still claiming to believe in the need for climate legislation.  Indeed, given President Obama’s pledge to veto the resolution if passed, a “no” vote didn’t necessarily have much practical significance, making it a cheap way to placate conservative voters or home-state corporations.

Thus, the “yes” votes are a little hard to read: some of them were undoubtedly votes against any form of climate regulations; others may not have been. On the other hand, the 53 Senators who voted against the resolution do seem committed to action on climate change.  We just need seven more votes to pass new legislation.  In the meantime, at least the Clean Air Act is there as a fallback option.  Murkowski is right that it would be much better for Congress to legislative in this area than for EPA to regulate under the Clean Air Act — but the best way to get Congress to get its act together is for EPA to press ahead with its own regulations.

 

 

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Daniel A. Farber is the Sho Sato Professor of Law and Director of the California Center for Environmental Law and Policy at the University of California, Berkeley.

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