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EPA, not Congress, could set rules

Published on May 29, 2010 3:01AM

Last changed on June 26, 2010 7:28AM


It appears to us that the Environmental Protection Agency, not Congress, will regulate greenhouse gases.

A few weeks ago, Sens. John Kerry and Joe Lieberman introduced their draft of climate legislation. Although they set out somewhat different paths, both the Kerry-Lieberman bill and climate legislation passed by the House of Representatives last year mandate an 83 percent reduction in greenhouse gases from 2005 levels by 2050.

Both bills, according to the Heritage Foundation, will cost farmers and ranchers billions of dollars in increased energy and fuel costs, and could lead to massive amounts of productive farm and grazing land fallowed in favor of carbon sequestration projects.

Many observers say there's little chance that the Senate will pass Kerry-Lieberman this year because incumbents aren't anxious to provoke voters with another unpopular measure so close to the mid-term elections. The voters aside, it's not clear the bill has enough support among Democrats to pass muster.

In the event the bill passes, there are considerable differences between it and the House bill that would have to be reconciled. The House bill was the product of considerable deal-making, and still only narrowly passed. A last-minute re-negotiation of those deals would likely doom the legislation.

It seems unlikely that the measure would stand a better chance passing in 2011. The common political wisdom holds that the Democrats will lose seats in both the House and the Senate in November. The start of the new Congress in January will force the House to begin fresh on climate legislation.

The only other option would be for lame duck Democrats to mount a Hail Mary play to pass a bill after the election and before January while their current majorities are still in place. Since there are Democrats who don't support the legislation as written, that scenario seems unlikely.

Equally unlikely to succeed are efforts to pass resolutions barring the EPA from regulating greenhouse emissions. Though measures in both chambers enjoy much popular support, proponents lack the supermajority necessary to override a certain veto by President Barack Obama.

EPA director Lisa Jackson promised her agency will take a common sense approach to emissions control, but said legislation would remove any "uncertainty" the regulatory process might cause. The president also has said he would prefer a legislated solution, but has kept the threat of regulation as an alternative in the event democracy failed to produce his desired result.

In 2007 the Supreme Court ruled that the EPA had the authority to regulate greenhouse gases, and ordered the agency to conduct a scientific review. Even as the House began working on its bill last spring, the EPA announced its finding that greenhouse gases contribute to air pollution and endanger public health, opening their regulation under the Clean Air Act.

We think Jackson's reference to "uncertainty" is an extreme understatement. So far true to her word, Jackson's agency has indicated it would phase in restrictions, beginning first with very large emission sources. Unfortunately, the Clean Air Act provides for no such restraint, and calls for regulation of any and all sources emitting even relatively small amounts of a pollutant. The ensuing litigation will at best confuse the issue and at worst make regulation more harsh.

We have agreed with the president that a legislated solution would be best. Our preference would have been for Congress to legislate the EPA and itself out of the greenhouse gas regulatory business. We still hope the next Congress will at least do the former. And if more is required, we're confident it will act in a way that won't kill jobs and reduce the ability of American farmers and ranchers to earn a living while producing affordable food.


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