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An End-Run Around Legislative Paralysis: EPA Will Control CO2 if Congress Won’t

December 7th, 2009 No comments

Today’s news that the EPA has found greenhouse gases to be a public health danger (i.e., hazardous to both human beings and the environment) gives the Obama Administration leverage it didn’t have yesterday. If Congress won’t get behind laws to regulate carbon dioxide and other gases, the EPA can simply regulate the stuff. Legally sound? Probably. Good policy? Probably not. But it might be the only way to get anything done.

Once upon a time, a President with solid majorities in both chambers was considered to have a mandate to actually get laws passed. But that was before the U.S. Senate, already designed to be obstructionist, transformed the “filibuster” from a rarely invoked, desperate, and rear-guard action into an inviolate requirement that nothing can happen without the super-majority of 60 that’s needed to invoke cloture and stop the debate. No one needs to bother filibustering; the threat of it is sufficient. (Of course, there is something to be worried about: Endless debate by U.S. Senators is a prospect you should  keep from small children.)

Things have now reached such a ridiculous pass that, on health care reform, even members of the majority party threaten to vote against cloture, thereby threatening to defeat their own party’s initiatives without even letting them come to a “regular” vote that would require a bare majority. (Maybe this isn’t so bad, though. Who wants to see these people bare?)

One way out of this frustrating logjam is to go the regulatory route. By declaring what most sane people know (despite the distracting email kerfuffle), the EPA has given itself — and the Administration for which it works — an  insanely powerful, practical, and political too.  It reminds me of Tweetybird, hiding that huge mallet behind his head and then slamming the hapless Sylvester. Businesses won’t know what hit them.

But it’s hardly the best way to proceed. The EPA can limit the emissions, but can’t impose a tax or develop a cap-and-trade approach (to name two competing legislative proposals). There’s a notice and comment requirement to regulations, but these can’t stop agencies from doing whatever their statutory authority allows.  Given the dysfunction of the U.S. Senate, the threat of a command decision by an agency accountable only to the Executive branch might be needed to get legislation passed. But the situation should be yet another reminder that something needs to be done about the Senate, before it becomes unable to function at all.