Two House Democrats are circulating a draft of legislation that, if passed, would effectively implement the position the Bush administration held regarding greenhouse gas (GHG) emissions prior to a recent U.S. Supreme Court ruling. The legislation threatens to create enough disarray among Democrats that the hope for progress on GHGs generated by the court decision and the 2006 elections could be dashed.

The draft legislation is the product of John Dingell (D-MI), the chairman of the Energy and Commerce Committee, and Rick Boucher (D-VA), the chairman of the committee's Subcommittee on Energy and Air Quality. The bill would amend the Clean Air Act and overturn the important April 2, 2007, decision by the Supreme Court which held the U.S. Environmental Protection Agency (EPA) has the power to regulate greenhouse gas emissions from vehicles. The EPA had argued it did not have the authority under the Clean Air Act to regulate these emissions, but the Court clearly disagreed.

The bill would affect the ability of the U.S. to control its share of GHGs in several ways, even after the Bush administration leaves office. First, it would weaken fuel economy standards to below what the administration has proposed and below what the National Academy of Sciences has said could be achieved by off-the-shelf technology, according to a New York Times editorial. Second, it promotes new coal-to-liquid fuel plants that would produce alternative fuels. These coal-based fuels would actually increase the GHG emissions of conventional gasoline, according to the editorial.

The legislation would also preempt states' abilities to move forward with state and regional initiatives to reduce GHG emissions. One section of the draft adds language forbidding EPA from issuing waivers under the Clean Air Act, which currently allows EPA to permit states to implement tougher regulatory standards. California, for example, has been seeking a waiver from the EPA to allow the state to implement its more stringent air emissions program. In turn, eleven other states are waiting on this same waiver to implement their programs. (See the article in the last issue of The Watcher for details.) Both the waiver powers and the ability of states to set stricter standards (while the federal standards become a regulatory floor) have been hallmarks of environmental legislation. The Dingell-Boucher legislation would roll back these environmental safeguards.

Furthermore, actions taken by several cities across the nation would also become endangered. Cities from Boston to Portland, OR, have initiated plans to reduce GHG emissions. One characteristic of our federal system of government is that cities are the administrative arms of state governments, meaning that local jurisdictions often need state approval to conduct some activities. A June 9 Washington Post article describes the extent to which some cities are enacting programs without waiting for federal action. One of the most ambitious plans, according to the Post story, is New York City's, part of which needs state approval before it can be implemented.

The preemption strategy adopted by Dingell and Boucher is similar to one the Bush administration has used in a variety of contexts to prevent states from establishing stricter health, safety or environmental standards and to prevent citizens from seeking damages after injury or death from harmful products or activities.

Dingell has long been a champion of the auto industry. He railed against environmental legislation in the 1970s fearing the loss of jobs in the industry and the increased cost to vehicle makers. According to Clean Air Watch, Boucher receives significant contributions from coal companies in his district and has been promoting the coal-to-liquid fuels technology this congressional session.

Democratic leaders have reacted strongly to the draft bill. A June 8 BNA story outlined the likely intra-party battles to come in committee and on the House floor. Henry Waxman (D-CA) and eleven other Democrats sent a letter to Dingell and Boucher expressing concern about their proposal. Waxman intends to offer a substitute amendment when the bill is marked up at a scheduled committee session June 13. Edward Markey (D-MA), chair of the House Select Committee on Energy Independence and Global Warming, also intends to offer legislation that would increase the corporate average fuel economy standards auto manufacturers must meet, according to BNA.

House Speaker Nancy Pelosi (D-CA) also opposes the Dingell-Boucher proposal because it would halt California's implementation of its vehicle emissions program. Pelosi established the controversial committee Markey now chairs because she wanted a committee fully devoted to resolving these difficult global warming issues. Her move was regarded by some as an insult to Dingell, whose committee retains jurisdiction over the issue. Democrats would be wise to put aside the infighting and focus on the larger context, as the New York Times editorial reminds us:

When Americans elected a Democratic Congress last November, they were voting to end politics as usual and special interest legislation. On the vital issues of energy independence and global warming they are not only in danger of getting more of the same but also, unless Nancy Pelosi and other Democratic leaders step forward, winding up in worse shape than they were under the Republicans.