Senate Gridlock Pushes Decision Making on Greenhouse Gas Regulation to EPA and the Courts
Submitted by James Smith, Beirne, Maynard & Parsons, L.L.P. (Houston)

Note: This article is a follow up to prior articles by Mr. Smith that can be viewed here.

Greenhouse gas legislation is dead, at least until after the fall elections. Most likely, legislative initiatives on greenhouse gases will stay dead, at least until after the presidential election in 2012, due to the need for 60 senators to support any legislation. This does not mean that the potential for new greenhouse gas regulation will stop; it means that EPA and the courts will have the key regulatory roles for greenhouse gas regulation, and they will probably keep those key roles for years to come.

Earlier this year, the House of Representatives passed a comprehensive greenhouse gas regulatory bill, which contained a cap and trade program designed to reduce greenhouse gas emissions. The Senate did not pass this bill, and Senate Majority Leader Reid recently announced that the House bill would not become law because the Senate would not be considering greenhouse gas legislation before the fall elections.

Most observers predict Democratic losses in the Senate and the House this fall. Passage of anything like the House greenhouse gas bill appears impossible, except possibly in the few months after the election, while the current Senate and House membership still sits. This "lame duck" session could produce a bill (the 1980 lame duck session produced the Superfund law), but significant legislation during lame duck sessions is rare.

Once the new Senate and House members take office in 2011, perhaps with one or both houses controlled by Republicans, the most likely initiative will be an attempt by Republican legislators, perhaps with some Democrats from coal producing states, to pass a bill forbidding EPA from enacting a comprehensive greenhouse gas program under the existing Clean Air Act.

A 2007 US Supreme Court case (Massachusetts v. E.P.A.) ruled that EPA had the authority, under the existing Clean Air Act, to control greenhouse gases. However, any legislative attempt to change the Clean Air Act to preclude EPA from regulating greenhouse gases would still need 60 Senate votes to pass, and 67 Senate votes to override a presidential veto.

The reality is that the numbers in the Senate probably preclude any new legislation to control greenhouse gases, and also preclude any attempt to narrow EPA's current authority, as expressly interpreted by the US Supreme Court.
EPA has begun the steps toward fashioning its own greenhouse gas regulatory program. Not surprisingly, various groups have challenged these actions in court. It may take some time for EPA to develop a greenhouse gas program that the courts uphold, but it looks like EPA is more likely to do so before the House and Senate are able to pass any greenhouse gas legislation, and before they are able to block EPA's efforts.

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