Murkowski floor statement: Congress, not EPA, should shape energy policy

"There is no question that our recovery is still fragile and very much in doubt. It is also clear that it will take quite some time for millions of unemployed Americans to find jobs and get back on their feet again. These tough facts should encourage us to focus on policies that create jobs and reduce our debt — and at the same time, should encourage us to guard against policies that fail in either or both of those areas.

"We're here today to debate a policy that works against both of those goals: the Environmental Protection Agency's effort to impose economy-wide climate regulations under the Clean Air Act. The sweeping powers being pursued by the EPA are the worst possible option for reducing greenhouse gas emissions. There is broad, bipartisan agreement that this approach would forgo all of the benefits and protections that are possible through legislation. It would reduce emissions at an unreasonably high cost and through an unnecessarily bureaucratic process. It would amount to an unprecedented power grab, ceding Congress' responsibilities to unelected bureaucrats, and move an important debate from our open halls to behind an agency's closed doors.

"This approach should have been taken off the table long ago. And yet, because the EPA is determined to move forward aggressively — and because neither Congress nor the administration has acted to stop them — it is now in the process of becoming our nation's de facto climate policy. Just seven months from now, not long after the midterm elections, the first phase of the EPA's regulations will officially kick in.

"Because this is our worst option to reduce emissions, and Congress needs time to develop a more appropriate solution, I introduced a Resolution of Disapproval in January to halt the EPA's regulations. My resolution does not affect the science behind the endangerment finding, but it will prevent the finding from being enforced through economy-wide regulations.

"Forty other Senators have joined me and are co-sponsors of this effort. Our resolution has also garnered significant support among the American people. From the day it was introduced, individuals and groups from all across the country have expressed their appreciation and active support.

"Earlier this week, in a new low, the EPA Administrator suggested that our resolution was somehow related to the oil spill. But the sponsors of this resolution are actually standing shoulder-to-shoulder with a tremendous coalition - from farmers and manufacturers to small business owners and Tea Party patriots — to oppose her agency's regulatory crusade. From beet farmers and fish processors to metal foundries, more than 530 stakeholders have endorsed our resolution's passage.

"Now, despite that support, I'll still be the first to admit it faces an uphill battle. We oppose the EPA's regulations because of their costs, but sadly, that is precisely why some Senators support them, hoping they will be so onerous as to force us to adopt legislation we otherwise wouldn't. Personal attacks have been directed at supporters of this resolution in an effort to intimidate others from adding their names. Some have even claimed the resolution is a bailout for oil companies, and are trying to make sure they don't let another crisis 'go to waste' in their efforts to pass sweeping cap-and-trade measures. The only similarity I see between the spill in the Gulf of Mexico and the EPA's regulations is that both are unmitigated disasters — one happening now, the other waiting in the wings if Congress fails to adopt this resolution.

"This decision ultimately boils down to four substantive factors: the inappropriateness of the Clean Air Act for reducing greenhouse gas emissions; the likelihood that courts will strike down the tailoring rule; the lack of economic analysis from the EPA; and, above all else, the undisputed fact that climate policy should be written here in Congress.

"I'd like to explain each of these factors in greater detail, so let's start by examining why the Clean Air Act is such an awful choice for reducing these emissions. I've explained this several times before, so I'll just reiterate two main points. First is the way these regulations are to be carried out: command-and-control directives issued by the government affecting every aspect of our lives, rather than market-based decisions made by consumers and businesses. This system will be imposed through millions of permit decisions by mid-level EPA employees, without effective recourse, and it will leave regulated entities with little flexibility to comply.

"Second are the Clean Air Act's explicit regulatory thresholds, which put the exclamation point on why this law is such a poor choice for addressing climate change. Under the act, if you emit more than 100 or 250 tons of a pollutant each year, you must acquire a federal air permit. Those relatively low limits make sense for conventional air pollutants emitted in small quantities, but they become wildly problematic when dealing with a substance that is emitted in huge volumes through nearly every form of commerce — as carbon dioxide is.

"So how big is this new regulatory net? The EPA recently projected that some 6.1 million 'sources' could be required to obtain new Title V Operating Permits, as opposed to the 15,000 or so under current regulations. That would include millions of residential buildings, businesses, schools, hospitals, and restaurants found in every town in America. Over time, the EPA's approach would increase their regulation by an order of magnitude, and the consequences would be just as enormous.

"No one is more aware of this uncomfortable fact than the EPA itself. That's why the agency has attempted to dramatically increase the thresholds for greenhouse gases in its so-called 'tailoring' rule. Unhappy with the plain language of the Clean Air Act, the agency plans to lift its limits up to 1,000 times higher than Congress directed. It's deeply disturbing that the EPA did not accept that the Act is simply not structured for this task, and instead attempted to make it so by ignoring the plain language and unilaterally amending it. Equally astounding is that by temporarily relieving part of a permitting burden, the EPA is claiming that consumers and businesses - the people who purchase and use energy — will face no economic impact.

"I encourage my colleagues to think about the logic behind the tailoring rule. The EPA is asking us to accept that while greenhouse gases are not in the Clean Air Act, Congress clearly intended them to be regulated under it. At the same time, we're expected to believe that while explicit regulatory thresholds are in the Act, Congress meant for the EPA to ignore them.

"Mr. President, that's a pretty thin read. And it becomes even thinner when you consider the changes made between the tailoring rule proposed last year and the final rulemaking issued last month. In last year's draft, the EPA planned to ratchet down to the Clean Air Act's actual thresholds over the course of the next five years. Now, however, the EPA suggests it may exempt entire sectors and never reach the statutory limits. That alone will prompt lawsuits, as some sectors and some sources are regulated while others are not. And these changes are obviously driven not by the law, but by the fear of political backlash.

"That's why it's tough to find an impartial legal expert who believes the tailoring rule will hold up in court. Those prospects dim even further when you consider a speech given last year by Judge David Tatel, of the DC Circuit Court of Appeals, on how the EPA can avoid being sued over its rulemakings. Judge Tatel's remarks offered sage advice. Early on, he observed that, '...whether or not agencies value neutral principles of administrative law, courts do, and they will strike down agency action that violates those principles — whatever the President's party, however popular the administration, and no matter how advisable the initiative.'"

"Judge Tatel went on to describe a case involving the Clean Water Act. The DC Circuit had no choice but to overturn a rule on certain discharges, he said, because EPA chose to ignore the letter of the law. To this day, he says, the 'EPA's decision to ignore the statute's plain words rather than returning to Congress for authority to pursue its preferred policy still baffles me.' In my judgment, the tailoring rule is on the verge of becoming a similar anecdote for a future speech ‚ another cautionary tale to follow the law... or suffer the consequences.

"Now, you might wonder, what exactly will those consequences be? Believe it or not, we still don't know, because the EPA has refused to provide projections. In its various rulemakings, the agency has engaged in something of a shell game, either hiding or simply not considering economic cost. The EPA has also ignored requests from members of Congress to conduct such an analysis. To this day, the agency still has not provided anything close to a full projection of the economic impacts that its economy-wide climate regulations will have.

"There are two potential reasons why: the EPA either has no cost estimates, or knows they are too astronomical to calculate and release. My staff has attended briefings with EPA officials and been told, essentially, that they won't know how much these regulations cost until Best Available Control Technologies are imposed on regulated entities - that is, until the EPA figures out how to deal with what it has signed itself up for. The problem is that BACT remains completely undefined at this point. It could mean efficiency improvements, expensive add-on technologies, or even fuel-switching requirements. Over time, the EPA would have little choice but to impose all of those requirements and more, regardless of the consequences.

"Again, it's hard not to find this both surreal and deeply alarming. We need to be growing our economy, not paralyzing it. The national unemployment rate remains at nearly 10 percent. Private sector job growth is anemic. And yet, as millions of Americans do everything they can just to find work, bureaucrats here in Washington are contemplating regulations that will destroy those opportunities. Worse still, the people of our states have no voice in this bureaucratic process. They're on the verge of being subjected to rules and regulations that will impact their lives and livelihoods, without ever having an opportunity to express their concerns through their representatives in Congress.

"This brings me to my final point: politically accountable members of the House and Senate, not unelected bureaucrats, must develop our nation's energy and climate policies. And those policies must be able to pass on their own merits, instead of serving as a defense against ill-considered regulations.

"I've said this before, but it bears repeating: Congress will not pass bad legislation in order to stave off bad regulations. We're neither incapable nor unwilling to legislate on energy and environmental policy. That held true for landmark environmental legislation in the past, including the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act. And it still holds true today — the Energy Committee's bill and a number of other measures all stand as evidence of what is possible when members of Congress work together across party lines.

"Forgoing legislation in favor of regulation would sacrifice the priorities and protections sought by just about every member of the Senate. Worker training, funding for clean technologies, energy security enhancements, border adjustments, and manufacturing concessions would all go by the wayside. There will be no agricultural offsets, no free allowances, no banking and no borrowing under the Clean Air Act. There will be no funding for climate research or adaptation, no protection for consumers, and no assistance for businesses or workers.

"Now, I understand that some members say they will only support legislation that puts a price on emissions, and are frustrated the Senate hasn't agreed to do that. I don't believe that mandating higher energy costs and imposing regulations on consumers and businesses is the only way to solve this challenge. But I do believe the specter of EPA regulations is actually a big part of the reason why we have not reached agreement on a path forward. NGO's have exulted that the EPA is a "gun" to the head of Congress that will force us to act more quickly on climate legislation than we otherwise would. Sadly, quite a few members of the Senate have actually bought in to the administration's coercive strategy.

"Mr. President, throughout the year-long debate on this issue, opponents have refused to discuss the actual impacts of EPA regulation. Listen today and see if any opponents actually defend such regulation as good for America. Instead, there will be red herrings about science, about fuel standards, about the oil spill. But as much as some want it to be, this debate is not about the science of climate change. It's not a referendum on any other legislation pending in the Senate. Nor is it about fuel efficiency — the Department of Transportation is and has been in charge for 35 years, and we don't need another agency and another standard thrown into the mix to do the same job. We updated our nation's CAFE standards less than three years ago — to at least 35 miles per gallon — and we left DOT in charge of their administration. We also outlined a rational process for standards for medium- and heavy-duty trucks.

"Every target set by this administration can be met with existing authorities. As the Department of Transportation has admitted, our resolution "does not directly impact" their ability to regulate the efficiency, and thus greenhouse gas emissions, of motor vehicles. The only potential exception is air conditioning — and I have little doubt that we could gladly provide EPA with specific authority to regulate those systems, instead of broad powers over our entire economy, when energy legislation comes to the floor next month.

"The EPA does not need to take over this process, and it should not be allowed to do so under a law that was never intended to regulate fuel economy. I understand concerns about a patchwork of standards, and how difficult that would be for the industry to comply with. But while we had one national standard at the start of 2009, we now have two national standards — set by two federal agencies — being driven by California's standards. The best way to avoid a messy patchwork would be to pass our disapproval resolution, revoke California's waiver, and allow one federal agency to set one standard that works for all 50 states.

"Bringing climate science, the oil spill, and fuel economy into this debate are attempts at misdirection — "green herrings" intended to convince members to oppose our resolution. But this debate has nothing to do with those topics. It's about finding the best approach to reduce emissions, and defending against policies that fail to strike an adequate balance between the environment and our economy. It's about maintaining the separation of powers between the legislative and executive branches, as our founding fathers intended, and rejecting an unprecedented overreach by the EPA into the affairs of Congress. At its core, this is a debate about jobs — whether we should seek conditions that will lead to their creation, or enable policies that will destroy them. This is our chance to make sure that federal bureaucrats do not place a new burden on millions of hard-working Americans, at a time they cannot afford it and in a way they cannot reject.


"The time has come for the Senate to take the worst option for regulating greenhouse gases off the table once and for all. Under the procedures of the Congressional Review Act, I accordingly move to proceed to consideration of Senate Joint Resolution 26. I encourage the members of this chamber to support debate on this measure, and to vote in favor of both the motion to proceed and final passage."

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