Why Murkowski may not use the debt ceiling to challenge EPA on climate

Here’s the deal: As EPA is writing greenhouse gas regs, it is also working on a “tailoring rule” that would limit their impact to only large emitters. Without that change, the EPA regulations would apply to small businesses too, a regulatory and a political nightmare.

The regulation would apply to entities that emit 25,000 tons or more of CO2 a year, which is a much higher floor than the other pollutants now regulated under the Clean Air Act. The change is necessary because companies release far more C02 than they do other gases like sulfur dioxide.

The second degree amendment Democrats are considering would codify the tailoring rule, that is, give it a congressional stamp of approval. The amendment would likely be a winner in the Senate because what lawmaker wants to go on record opposing something designed to limit the regulatory burdens to mom-and-pop bakeries and the like? Very few.

Industy lobbyists don't want the tailoring rule codified because it would make a court challenge to emissions regulations much tougher. Energy lobbyists now believe challenging the tailoring rule in court is one of the best legal options they have in trying to delay EPA action.

Robert Dillon, a Republican spokesman on the Senate Energy and Natural Resources Committee, on which Murkowski sits as ranking member, said the senator was aware of the possibility of a problematic second degree amendment. But the option of amending the debt ceiling bill is still on the table.

“The question is, Do Democrats really want EPA regulations on their hands? If they codify it, they own it,” Dillon said. “They could do this. Do they really want to?”

Another option on the table avoids the problems of a second degree amendment.

Murkowski is also introducing a resolution through the Congressional Review Act, which allows Congress to block federal rules it doesn’t like. Resolutions under the CRA can’t be amended. They can be vetoed, which would likely happen if it reached President Barack Obama’s desk. 

Here’s more from OMB Watch on the CRA process.