Broad Opposition to Bill Targeting Climate Rules

Despite broad opposition, a vote is expected soon on a Senate resolution that aims to prevent any Environmental Protection Agency (EPA) regulation of climate changing emissions by overturning the agency’s finding that greenhouse gases are a danger to human health and the environment.

Most recently, more than 1,800 scientists wrote to Congress, urging members to oppose the resolution. Passage would undermine regulatory efforts to curb emissions, and "because the EPA's finding is based on solid science, this legislation also represents a rejection of that science," the letter says.

The auto industry also stands opposed. The resolution could undo already finalized regulations that set tighter fuel efficiency standards for vehicles beginning in model year 2012. Those standards are the result of a compromise brokered by the Obama administration which automakers agreed to, preferring the standards be set at the federal level, instead of at the state level, to achieve a uniform national standard.

Alaska Republican and oil industry puppet Sen. Lisa Murkowski introduced the resolution (S.J. Res 26) under the Congressional Review Act (CRA), a 1996 law that gives Congress the power to veto agency regulations. If Senators get their timing right, the resolutions enjoy privileged status – they become non-amendable and non-filibusterable and must be brought directly to the Senate floor for a vote. (The law does not provide for anything similar in the House.)

But figuring out the proper timing for a CRA resolution is no picnic. The CRA’s drafters, possibly under the influence of some sort of hallucinogen, included no fewer than four definitions of the word “day” in the law.

Murkowski introduced the resolution on Jan. 21, 2010. In order to enjoy privileged consideration, Sec. 802(a) of the law says resolutions must be introduced within 60 days of the time the rule in question is submitted to Congress, “excluding days either House of Congress is adjourned for more than 3 days during a session.” We’ll refer to this as the “days of continuous session” definition. Since EPA submitted the endangerment finding on Dec. 8, 2009, the resolution seems to have been introduced on time.

But here’s where things get tricky. The CRA details special procedures for rules submitted near the end of a session of Congress. In the Senate, rules submitted to Congress “during the period beginning on the date occurring…60 sessions days…before the date the Congress adjourns.” Since Congress adjourned Dec. 24, EPA’s endangerment finding clearly falls into this category. In these cases, the window for introduction of a resolution starts anew in the succeeding session of Congress.

So why should that change things? Well, a rule falling into this category “shall be treated as though” it was submitted to Congress on the 15th session day, which is when the new introduction window starts in the Senate.

Even though EPA submitted the endangerment finding to Congress on Dec. 8, 2009, it actually must be treated as though it were submitted on Feb. 9, 2010, the 15th session day in the Senate. That would mean, for the purposes of the CRA, that Murkowski introduced her resolution (Jan. 21) before the rule was submitted and that the resolution is not in compliance with Sec. 802(a).

It’s hard to say what this all means. There is virtually no precedent when it comes to the CRA. It has only been used successfully once, and the few resolutions that are introduced go nowhere. (Presidents must sign CRA resolutions in order for them to take effect. Since presidents are unlikely to overturn their own administration’s rules, the CRA is ultimately useless. This is true of the endangerment finding.)

If my interpretation is correct, Murkowski’s resolution should not enjoy privileged consideration. If my interpretation is wrong, or if it’s interpreted as wrong by the Senate parliamentarian (because, let’s face it, I’m always right), then Murkowski would have to bring the bill to the Senate floor within “60 session days beginning on the 15th session day” under CRA provisions for rules submitted in the carryover period. Note, that is a bit different than the 60 “days of continuous session” time period which has already expired. Today, the Senate is on session day 52 after the 15th session day.

Got it? If you want to find out more (What are you, a masochist?), read the Congressional Research Service report, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress.

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