The Heat Is On: Global Warming And The EPA (Part 7) – Guest Essayist: Phil Kerpen

In our constitutional republic, the Congress of the United States is the legitimate legislative branch of government, charged with making the laws. A decision to adopt any national global warming program is an enormous one, with hundreds of billions of dollars and personal liberties at stake. This is simply not something that ought to be done through the back door via an unelected, unaccountable agency.

As with all executive power grabs, the EPA ultimately can only do what Congress allows. Voters must constantly remind their elected representatives that they expect them not only to oppose bad laws but to step in and stop the executive branch when it oversteps its bounds.

The U.S. Senate had its first opportunity to stop the EPA’.s glob­al warming regulations on June 10, 2010. On that day, U.S. Sen. Lisa Murkowski CR-Alaska) forced a vote on overturning the EPA’s finding that greenhouse gases endanger public health and welfare. Because all of its subsequent global warming regulations (though not the indirect threats, which must be stopped separately) legally depend on the endangerment finding, it would have effectively closed the door on the direct regulatory threat. Vehicle emissions standards would exist only under the Department of Transportation as authorized by the CAFE law.

It usually takes 60 votes to get things done in the U.S. Senate, but overturning regulations can be done with a simple majority of 51. That’s because of a special procedure passed as part of the 1994 Contract with America called the Congressional Review Act. It created a special process where it takes only 30 senators signing a petition to force an up-or-down, filibuster-proof vote on overturning a federal regulation on the Senate floor. It can only be done within 60 legislative days of a regulation going final, though, so it’s a one-shot deal.

The process has two principal weaknesses. First, unlike Kentucky Republican Congressman Geoff Davis’s REINS Act, it fails to place an affirmative burden on Congress to approve new regulations. Instead, even enormously consequential regulations like the endangerment finding can move forward by default unless Congress decides to intercede. While REINS is proactive, the Congressional Review Act is reactive. Second, there is no expedited procedure on the House side, which means Congressional Review Act actions can typically only be voted on if House majority leadership wants them to be.

Nonetheless, the use of the Congressional Review Act put every senator on the record as to whether or not he or she wanted to stop the EPA. It was more than symbolic. If it had passed the Senate, the House would have been under tremendous pressure to consider it. If it passed the House, Obama would have had to either stand the EPA down or veto the resolution, taking full personal credit for what the agency is doing.

That’s why the White House intervened in an enormous way to turn the tide when it looked like Murkowski’s resolution would pass. The White House issued a veto threat and dispatched top officials, including Carol Browner, to the Hill to pressure Democratic senators.

When every other tactic had failed, and the resolution still appeared headed for passage, Harry Reid promised a group of terrified coal-state Senate Democrats a political cover vote on delaying the EPA regulations if they would agree to vote against stopping them. Even so, all 41 Republicans and six Democrats voted to stop the EPA. The 47 votes were just four shy of the 51 needed for passage. The six Democrats who did the right thing were Blanche Lincoln (D-Ark.), Mary Landrieu (D-La.), Ben Nelson (D-Neb.) (those three were cosponsors and most in need of some redemption after their health care votes), Evan Bayh (D-lnd.), Mark Pryor (D-Ark.), and Jay Rockefeller (D-WVa.).

When the Senate had its first chance to stop the EPA, it failed to do so, and all the Democrats who voted “no” bear responsibility Senators like Bill Nelson (D-Fla.), Claire McCaskill (D-Mo.), Jon Tester CD-Mont.), Kent Conrad (D-N.D.), Sherrod Brown (D-Ohio), Robert Casey (D-Pa .), and Herb Kohl (D-Wis.) were convinced that even though the regulations at stake were disastrous for their states, they could survive politically because the issue of regulation is not well understood. They deserve to be shown otherwise.

Another senator whose term is up in 2012 gave one of the most bizarre floor speeches I’ve ever seen in the debate over Murkowski’s resolution:  Jim  Webb  (D-Va.) .  For months Webb had  quietly  worked to build support for the resolution among Democrats . He comes from the coal country of southwest Virginia, the same area that dumped Rick Boucher for advancing cap-and-trade. He has a strong populist streak that bristled at the idea of bureaucrats setting policy instead of Congress. But when the chips were down and Obama and Reid applied pressure, Webb folded.

The strangest thing, though, is that his floor speech made quite clear he knew he was doing the wrong thing and betraying his constituents. He said that day:

I do not believe that Congress should cede its authority over an issue as important as climate change to unelected officials of the Executive Branch. Without proper boundaries, this finding could be the first step in a long and expensive regulatory process that could lead to overly stringent and very costly controls on carbon dioxide and other greenhouse gas emissions. Congress-and not the EPA-should make important policies, and be accountable to the American people for them.51

Webb went on to specifically debunk all of the Democratic arguments against the resolution. He argued passionately that Congress must stop the EPA .52 Then he voted not to. His decision not to run for reelection in 2012 is almost certainly motivated, at least in part, by his inability to explain away this betrayal of his states coal industry.

Contrast what Webb ended up doing with left-wing stalwart U.S. Sen. Jay Rockefeller of West Virginia, who made clear that he, unlike Webb and most other Democrats, would not allow the EPA to destroy his state’s economic future. This is what he said:

I have long maintained that the Congress-not the unelected EPA-must decide major economic and energy policy. EPA regulation will have an enormous impact on the economic security of West Virginia and our energy future. I intend to vote for Senator Murkowski’s Resolution of Disapproval because I believe we must send a strong message that the fate of West Virginia’s economy, our manufacturing industries, and our workers should not be solely in the hands of EPA.53

His statement was as true for the national economy as for the West Virginia economy.

The vote was fundamentally about one thing: who decides our economic future?

In our constitutional republic, the Congress of the United States is the legitimate legislative branch of government, charged with making the laws. A decision to adopt any national global warming program is an enormous one, with hundreds of billions of dollars and personal liberties at stake. This is simply not something that ought to be done through the back door via an unelected, unaccountable agency like the EPA.

Phil Kerpen is head of American Commitment and a leading free-market policy analyst and advocate in Washington. Kerpen was the principal policy and legislative strategist at Americans for Prosperity for over five years.  He previously worked at the Free Enterprise Fund, the Club for Growth, and the Cato Institute.  Kerpen is also a nationally syndicated columnist, chairman of the Internet Freedom Coalition, and author of the 2011 book “Democracy Denied.

Excerpt provided by BenBella Books.

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