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The EPA option likely to live to fight another day

murkowskiepa.JPG

As people following the issue know, the only serious chance that a climate-change bill has to pass is that the business community gets so scared or tired of the EPA bluntly regulating carbon that they ask Congress to fashion a more workable solution. Lisa Murkowski, a Republican Senator who professes deep concern about global warming and deep opposition to anything anyone might to do stop it, has predictably worked up a bill to bar the EPA from acting, thus removing the last, best hope of a climate-change bill.

Murkowski's proposal utilizes an arcane legislative technique called "the Resolution of Disapproval." The option was created in the 1996 Congressional Review Act and it creates an official mechanism for Congress to disagree with the rulings of executive-branch agencies. Even better, that official mechanism can't be filibustered. Murkowski's bill would disagree with the EPA's finding that carbon is a danger and needs to be regulated, even though that's officially Murkowski's position as well.

When I first heard about this, it seemed likely to kill the EPA option. But it turns out that resolutions of disapproval are not as impressive an instrument as they look. First, Murkowski's amendment would have to be passed by the House, which is unlikely. And then it'd have to be signed into law by the president, which is even more unlikely. If he vetoes, then it needs two-thirds in both the House and the Senate, which is almost impossible. Which raises the question: Why does the "resolution of disapproval" exist at all?

Photo credit: By Mark Wilson/Getty Images

By Ezra Klein  |  May 17, 2010; 2:20 PM ET
Categories:  Climate Change  
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Comments

Because, prior versions of congressional disapproval resolutions that did not require passage by both houses and the president's signature have been deemed to be unconstitutional. See INS v. Chadha, 462 U.S. 919 (1983)

Posted by: avif | May 17, 2010 3:07 PM | Report abuse

Perhaps it exists so that people like Murkowski can pass something meaningless - since it will fail somewhere other than the Senate - and then go home and campaign on it. Pretty much sums up plan B for Republicans, when plan A ("No, no, no, NO!") doesn't work.

Posted by: RalfW | May 17, 2010 3:07 PM | Report abuse

Correct, at this point passing it in the Senate, is nothing but a symbolic gesture. Passing it next year and, with the change in the House, passage there too will leave Obama with the necessity to actually take a position himself...with a veto. Of course it couldn't be overridden. But the EPA can be defunded (or actually, negatively earmarked) and the result will be the same.

A Republican House and more conservative Senate could spend the next two years depriving Obama of his ability to utilize his favorite ploy"...which is to say, voting "present." He will be deprived of his ability to utter moderate platitudes while pushing a progressive agenda. The "carbon tax" is just one of many venues where he can be "smoked out" so that the 2012 election can be about issues rather than this infantile "change" and "we can do it" prattle that got him through 2008 just fine when he had Bush to run against.

Posted by: CincinnatiRIck | May 17, 2010 3:33 PM | Report abuse

"First, Murkowski's amendment would have to be passed by the House, which is unlikely. And then it'd have to be signed into law by the president, which is even more unlikely. If he vetoes, then it needs two-thirds in both the House and the Senate, which is almost impossible. Which raises the question: Why does the "resolution of disapproval" exist at all?"

Obviously the math would not work for this issue, with this Congress, and this President.

But you may as well ask, why does Presidential veto and Congressional over-ride exist at all?

It exists because it is possible to have a scenario where one party controls the Executive branch and the opposing party controls the Congress, in which case it would not stretch the imagination too far to see the "resolution of disapproval" tactic succeed.

Posted by: Patrick_M | May 17, 2010 3:34 PM | Report abuse

What gives the EPA the right to regulate Carbon emissions?
We the people want CO2 to be emitted because it is used by plants to grow. Plants in turn give off Oxygen needed by humans to grow.
What is the EPA doing in the middle of this delicate cycle?
The EPA should not get involved with something they do not understand.
But I guess we should get used to this radical belief that is daily emitted from the liberal elite White House and Congress.

Posted by: rteske | May 17, 2010 3:42 PM | Report abuse

"What gives the EPA the right to regulate Carbon emissions?"

Technically, the law. Morally . . . well, when you're a hammer, everything looks a nail.

Eventually, the EPA is going to declare that Hydrogen Dioxide is a pollutant, and ban (or, at least, cap and tax it) accordingly.

Posted by: Kevin_Willis | May 17, 2010 4:00 PM | Report abuse

Kevin_Willis:

Much like carbon dioxide, hydrogen dioxide is one of those things that's good to regulate in extreme cases. "Dam and irrigate" is a pretty good policy, especially if you're in a flood zone.

Posted by: etdean1 | May 17, 2010 4:26 PM | Report abuse

"Stop! Or I'll say Stop again!"

rteske: I think you should print t-shirts telling the goverment to 'Let My Carbon Go Free!'. From your post it appears that you too should 'not get involved with something they do not understand.'

Posted by: Jaycal | May 17, 2010 4:33 PM | Report abuse

"What gives the EPA the right to regulate Carbon emissions?
We the people want CO2 to be emitted because it is used by plants to grow. Plants in turn give off Oxygen needed by humans to grow.
What is the EPA doing in the middle of this delicate cycle?
The EPA should not get involved with something they do not understand."


rteske is the one who does not understand, despite his near mastery of 3rd grade science lessons about photosynthesis.

What gives EPA the right? They have not only the right but the reposibility to protect the environment. Hence the name "Environmental Protection Agency."

CO2 levels in the atmosphere are currently up almost 40% since the industrial revolution, and are now at the highest level for at least the last 650,000 years. "We the people" do NOT want to continue to accelerate the greenhouse effect that results from excessive levels of carbon in the atmosphere.

It is the industrialized human race that put itself "in the middle of this delicate cycle," and it is up to the human race, through governmental bodies like the Environmental Protection Agency, to take steps to repair the damage to Earth's atmosphere by regulating carbon emissions within acceptable levels.

Posted by: Patrick_M | May 17, 2010 4:50 PM | Report abuse

Like a good Republican, she favors big oil business--drill in the Arctic, drill in the Gulf, is in favor of capping what damages oil companies have to pay for spill cleanup, and proposes the use of the Resolution of Disapproval [sounds like more NO to me. I'm supposed to believe that she has "deep concern" for global warming. Harry Truman would likely have used more blunt language, but I'll resist and refer to her beliefs as stated are hooey.

Posted by: sober1 | May 17, 2010 4:59 PM | Report abuse

"Why does the 'resolution of disapproval' exist at all?" Ezra asks. Simple. It was enacted as Subtitle E of the Small Business Regulatory Enforcement Fairness Act, which was in turn Title II of the Contract With America Advancement Act of 1996. This was about Newt Gingrich & his fellow House Republicans carrying through on their promise to get Big Government off the backs of the suffering small businessmen, i.e., grandstanding.

Posted by: Walsh44 | May 17, 2010 5:09 PM | Report abuse

EPA regulates Carbon?

You got to be kidding!

Posted by: read5 | May 17, 2010 5:21 PM | Report abuse

rteske: Lots of things are naturally produced and even necessary in order for the existence of life as we know it, and still regulated as pollutants. Poop is an example I'm fond of. Everybody poops, and the only way to stop a person (or animal) from pooping is to kill it, but if you just dispose of your poop however you feel like, state and federal law will impose strict penalties. Poop is an important part of the food cycle in moderation, serving as an efficient fertilizer, but too much poop disturbs the ecosystem and spreads disease. So the government, rightly, is highly involved in assuring that poop is properly disposed of.

Posted by: usergoogol | May 17, 2010 5:39 PM | Report abuse

the "resolution of disapproval" exists to make the president veto something that might be unpopular but good policy is my opinion. In this case they want to pin the regulation on the Executive branch so they can throw off the heat from their constituents.

Posted by: chrynoble | May 17, 2010 6:02 PM | Report abuse

Sober1 - do you live "off grid"? No, then you are part of the problem - minimize your OWN carbon footprint instead of abdicating your responsibility to a dictatorial political agency.

Posted by: LMW6 | May 17, 2010 6:59 PM | Report abuse

Ezra, resolutions of disapproval basically exist for attack ads. "My opponent voted to blah blah blah!"

Posted by: daw3 | May 17, 2010 8:09 PM | Report abuse

"minimize your OWN carbon footprint instead of abdicating your responsibility to a dictatorial political agency."

Yeah, that makes sense. While we are at it, why don't we all just avoid reckless driving instead of abdicating our reponsibility to the police that patrol our roads to enforce the law and provide for public safety?

Posted by: Patrick_M | May 17, 2010 8:09 PM | Report abuse

CO2 levels in the atmosphere are currently up almost 40% since the industrial revolution, and are now at the highest level for at least the last 650,000 years. "We the people" do NOT want to continue to accelerate the greenhouse effect that results from excessive levels of carbon in the atmosphere.

It is the industrialized human race that put itself "in the middle of this delicate cycle," and it is up to the human race, through governmental bodies like the Environmental Protection Agency, to take steps to repair the damage to Earth's atmosphere by regulating carbon emissions within acceptable levels.
Posted by: Patrick_M
-------------------
Only the arrogance of a progressive could persist in the illusion that man can control the earth. Where climate is concerned, the collective human race is no more that the flea on the tail of the dog.

Posted by: CincinnatiRIck | May 17, 2010 8:41 PM | Report abuse

"Only the arrogance of a progressive could persist in the illusion that man can control the earth. Where climate is concerned, the collective human race is no more that the flea on the tail of the dog."

Only the data-denying, anti-scientific superstitions of a tea bagger could persist in the illusion that humans cannot harm their environment. Perhaps we should send you on a fishing trip to the Gulf of Mexico, or for a delightful extended visit to beautiful Chernobyl.

Further data just made public today:

http://thehill.com/blogs/e2-wire/677-e2-wire/98161-noaa-first-third-of-2010-is-the-warmest-ever

Posted by: Patrick_M | May 17, 2010 9:13 PM | Report abuse

Perhaps we should send you on a fishing trip to the Gulf of Mexico, or for a delightful extended visit to beautiful Chernobyl.
-------------
Not even hiccups in the geological history of this planet. You really need to get out of that anthropomorphic brain lock.

Posted by: CincinnatiRIck | May 17, 2010 9:39 PM | Report abuse

"Not even hiccups in the geological history of this planet. You really need to get out of that anthropomorphic brain lock."

We know that particulate matter from a single volcanic explosion has changed the climate of Earth for years at a time on several occasions. Yet to your superstition-based thinking, while we also understand the re-radiative effect of gasses in the atmosphere, it is impossible for you to conceive that changing the atmosphere with excess carbon, on a constantly accelerating basis, courtesy of tens of millions of carbon-belching smoke stacks and tail pipes has any negative consequence whatsoever.

The greenhouse effect was discovered in 1824, and with luck perhaps someday you'll catch up to that era of scientific knowledge.

Posted by: Patrick_M | May 17, 2010 10:03 PM | Report abuse

Sen. Murkowski keeps telling this tall tale about EPA being an agency run amok and out of control. Um, not so much. Let's do the basics:

a. Congress gives EPA specific instructions in the Clean Air Act on how to deal with new pollutants that might endanger public health and welfare.

b. Bush Administration EPA refuses to follow the law as related to carbon dioxide.

c. Massachusetts and others sue EPA to follow the law.

d. Supreme Court tells EPA to follow the law.

e. EPA follows the law.

f. Murkowski accuses EPA of subverting Congressional authority to regulate CO2.

Somebody just needs to tell Sen. Murkowski that it was actually Congress that passed the Clean Air Act, and this whole misunderstanding should be cleared right up.

Posted by: davehamilton | May 17, 2010 10:54 PM | Report abuse

Ah kids these days don't even know why there is a resolution of disapproval, which makes it as easy to over-rule the EPA as to eliminate Social Security (just takes two thirds of the house and the senate).

Once upon a time, long before you were born, there was the "one house veto" such that executive branch decisions could be over-ruled by either the House or the Senate with no vetos or filibusters allowed.

Then the Supreme Court declared the one house veto unconstitutional.

The resolution of disapproval is either the result of old laws as modified by the Supreme Court with that decision or an act of pure stubborness where Congress insists on something that sounds like the unconstitutional provision but is constitutional.

I don't know what happened after the Supreme Court decision, but I'm pretty sure that the resolution of disapproval is the vestigial remain of a once powerful but unconstitutional procedure.


Oh and Kevin_Willis Hydrogen Dioxide is a free radical and very potent oxidizing agent which would be lethal in tiny quantities. I think you meant to write Dihydrogen Oxide (also known as water).

Do you remember the skit where Senator Al Franken made a parody "Without Chemicals life itself would be impossible" PSA about Dihydrogen Sulfate, then pretended to drink some ? He remembered junior high level chemistry and now he's a senator, while you and I are commenting here.

Posted by: rjw88 | May 18, 2010 10:45 AM | Report abuse

rteske: "What gives the EPA the right to regulate Carbon emissions?
We the people want CO2 to be emitted because it is used by plants to grow. Plants in turn give off Oxygen needed by humans to grow.
What is the EPA doing in the middle of this delicate cycle?"

I wish people who make this argument would think about whether they'd accept an offer to spend 10 minutes in a closet containing 100% CO2. That would make it obvious that too much of something "natural" can have very harmful effects.

And then we can start having a serious discussion.

Posted by: dasimon | May 18, 2010 6:24 PM | Report abuse

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