Repeal without replace: a dangerous GOP strategy on Obamacare and climate

Source: By Dana Nuccitelli, The Guardian • Posted: Wednesday, February 8, 2017

Activists participate in the Power Shift ‘09 rally on the West Lawn of the U.S. Capitol.
Activists participate in the Power Shift ‘09 rally on the West Lawn of the U.S. Capitol. Photograph: Alex Wong/Getty Images

House Republicans have introduced a bill to rewrite the Clean Air Act. The bill, which has 114 co-sponsors (all Republicans), would revise the Clean Air Act such that:

The term ‘air pollutant’ does not include carbon dioxide, water vapor, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride.

This change would kill the EPA regulation of carbon pollution that’s a key component of the Clean Power Plan.

The background story

The history behind these regulations is an interesting story. During the George W. Bush Administration, Americans were becoming increasingly concerned about the threats posed by human-caused global warming, and by the Administration’s actions to censor and silence climate scientists instead of taking action to address the problem.

So 12 states led by Massachusetts, in coordination with a number of cities, territories, and environmental and scientific groups, sued the Bush EPA. The case made it all the way to the Supreme Court in 2007. The key was that Massachusetts had to demonstrate it had legal standing to sue, which meant proving that the state was being directly harmed by climate change and EPA’s refusal to address it.

The Massachusetts Attorney General made a smart argument. As a coastal state, Massachusetts is harmed by sea level rise encroaching on its valuable shoreline property. Sea level rise is indisputably caused by global warming via the melting of land ice and the expansion of warmer water. The Supreme Court ruled in their favor in a 5-4 decision split along partisan lines, with Anthony Kennedy casting the deciding vote on the side of science. Scalia, Thomas, Alito, and Roberts dissented, basically arguing that the link between a lack of EPA carbon regulations and the state’s lost coastal property was too hypothetical, but they were outvoted.

The Supreme Court ruled that the EPA had to determine if greenhouse gas emissions endanger public health and welfare. If they do, then under the Clean Air Act, carbon dioxide and other greenhouse gases qualify as “air pollutants” and must be regulated as such. The Bush EPA dragged its feet until his term ended, and soon after President Obama took office, the EPA issued its Endangerment Finding that, based on the best available science, greenhouse gases do pose a threat to the public via climate change.

The 2007 Supreme Court Clean Air Act ruling and Endangerment Finding form the basis of the Clean Power Plan, a portion of which includes EPA regulation of carbon pollution from power plants. Generally speaking, Republicans hate government regulation, and the party is also in bed with the fossil fuel industry, so they’ve wanted to undercut the Clean Power Plan and Supreme Court decision ever since they were conceived. Now in control of all branches of government, they see their chance.

Republican bills put money and jobs over health and safety

Enter the “Stopping EPA Overreach Act of 2017.” As noted above, the bill would simply revise the Clean Air Act to state that greenhouse gases aren’t air pollutants. The bill states that nothing in the Clean Air Act any other law “authorizes or requires the regulation of climate change or global warming.” It notes that the EPA’s greenhouse gas emissions standards would be voided. Finally, the bill includes this dangerous provision:

No regulation, rule, or policy described in subsection (a) shall take effect if the regulation, rule, or policy has a negative impact on employment in the United States unless the regulation, rule, or policy is approved by Congress and signed by the President.

In other words, if the EPA were to determine that any sort of pollution was endangering or killing people, but the proposed regulation of that pollutant would result in the loss of a few jobs, EPA would not be allowed issue that regulation. Republicans in Congress – and any members who vote for this bill – are explicitly stating that employment is more important than human and environmental health.

There’s a similar bill with 160 Republican co-sponsors: the Regulations from the Executive in Need of Scrutiny (REINS) Act. It says that any regulation with compliance costs over $100 million per year would require approval by both the House and Senate. If either failed to pass the regulation within 70 days, it would be null and void. Again, if a regulatory agency with expert staffers were to decide that a regulation were necessary to protect public health and safety, but politicians in Congress declined to vote in support of the regulation, it wouldn’t be implemented.

Fortunately, these bills face long odds

So far the “Stopping EPA” bill has been assigned to four House committees, and at least three of those have no plans as of yet to take up the bill. Similarly, the REINS Act has been assigned to four House committees, but likely isn’t viewed as a high priority either.

I spoke to David Doniger, senior attorney for NRDC’s climate and clean air program about these bills. He noted that neither stands much chance of breaking through a Senate filibuster. Not only would the proposals face near-universal opposition from Democrats, but some moderate Republican Senators might even vote against them.

Were the “Stopping EPA” bill to make it through Congress and be signed by the President, there likely wouldn’t be any legal recourse, since it explicitly rewrites the Clean Air Act. However, Senate Democrats have the ability to block these bills, which likely explains why the House Committees don’t view them as a priority.

It’s worth noting that of the 240 Republican members of the House of Representatives, 114 co-sponsored the “Stopping EPA” bill, and 160 co-sponsored the REINS Act. In short, half to two-thirds of House Republicans think that protecting public and environmental health and safety may not be worth 0.003% of US annual federal spending, or losing a few jobs, and that they – not scientific experts – should be the ones to make those decisions.

It’s also important to note that as with Obamacare, Republicans are trying to repeal existing regulations without first agreeing on a replacement. They could certainly replace EPA climate regulations with a revenue-neutral carbon tax: a policy that many conservatives support. That would be a worthwhile effort. But simply repealing the only regulations America has in place to tackle the threat of human-caused climate change would be dangerous and irresponsible. The Republican Party needs to do much better than this.