Last month, the Environmental Protection Agency (EPA) proposed regulations to govern carbon emissions from existing power plants. The regulations, the centerpiece of President Obama's agenda on climate change, were immediately greeted with a torrent of rhetoric on all sides. The regulations will be a significant issue in the 2014 campaign and will be treated as if they are in effect or soon will be. Critics will cite the EPA action as evidence of an imperial presidency with Obama imposing his will regardless of what the rest of the country wants. Both of these perceptions are vastly overstated.
The proposed regulations are the first step in a long process that will stretch out over the next several years and will involve all three branches of government as well as public and interest group involvement. Here is a brief outline of what lies ahead for the EPA proposal.
Then Obama gets his turn to weigh in. Once the EPA has decided how it wants to modify its proposal, it submits the "final regulation" to the Office of Information and Regulatory Affairs (OIRA). The OIRA will look closely at the economics of the rule and ensure that the rest of the executive office of the president, as well as the other Cabinet departments, has its concerns addressed. This process could take several months.
Congress gets several bites at the apple. House Republicans have already discussed putting a "rider" on an annual appropriations bill to prevent the EPA from expending any resources on working on the regulation. Riders have often been used in the past to slow down or stop regulations that have provoked negative reactions in Congress. Because appropriation bills must be signed by Obama, they are subject to vetoes, and there has already been talk of a government shutdown over a rider on the climate change regulations.
If the riders are unsuccessful and the regulation is finalized by the EPA, congressional opponents of the regulation could turn to an obscure statute, the Congressional Review Act (CRA), to overturn it. The CRA allows Congress, for 60 "session days" after a regulation is finalized, to pass a joint resolution overturning the regulation without being subject to normal congressional procedures such as the filibuster. Such a resolution is also subject to presidential veto, which is why the CRA has only been used successfully once by Congress. Opponents of the regulation in Congress could combine strategies, using the rider to delay publication of the rule until late 2016 and then using the CRA, in the hope that a new president would sign a resolution overturning the regulation.
If the regulation makes it through the gauntlet of the executive and legislative branches, the judicial branch awaits. Groups representing the power plants affected by the rule will certainly sue to prevent the regulation from taking effect. They may be joined by other pro-business groups, and possibly some states. Ironically, the flexible nature of the regulation makes it particularly vulnerable to legal challenge, since the EPA has never issued a rule quite like it before. It is likely that the case will go all the way to the Supreme Court.
Even if the Supreme Court declares the climate change regulation the law of the land, implementation lies ahead. The regulation, as proposed by the EPA, is, like the Affordable Care Act, very dependent on the states for implementation. Governors and state legislatures may throw up roadblocks that make the regulations look very different in reality than they do on paper.
Sometime in 2017 or 2018, we will know the final fate of the regulations proposed by the EPA last month. If they do go into effect, one thing is for sure: These regulations will have been vetted by all three branches of government and received more public attention than many laws passed by Congress. If they do become final, there should be no questions about their legitimacy.
Shapiro is an associate professor and director of the Public Policy Program at Rutgers University and a member of the Scholars Strategy Network.