Upton Faces Resistance On EPA Issue

This is just the begining of a political war. Thanks NRDC.
Matt
New House Energy and Commerce Committee Chairman Fred Upton, R-Mich., has come out swinging against the Obama administration’s new climate change rules. His attacks are full of fiery rhetoric and GOP talking points about how Environmental Protection Agency regulations on greenhouse gases that cause global warming are an “executive power grab” and an “energy tax.”

His legislative proposals might not be on as firm footing as his rhetoric.

For example, one of his plans to undo the regulations may inadvertently put him at odds with one of his core constituencies: the auto industry.

In a Wall Street Journal op-ed he co-authored last week with Tim Phillips, president of the tea party group Americans for Prosperity, Upton proposed a halt on the climate rules until all legal challenges against them are settled.

That could undo a landmark 2008 settlement between automakers, states, and EPA on a rule to cut vehicle tailpipe emissions. The auto industry supports that rule and has teamed with the government and environmentalists in a legal fight to keep it in place.

Legal experts say that if Upton’s proposals were enacted, it could have a devastating economic effect on automakers, robbing them of long-term market certainty.

“Automakers have supported the [EPA] program to raise fuel economy standards for 2012-16,” said Gloria Bergquist, vice president of the Alliance of Automobile Manufacturers.

“We’re in an interesting position compared to other industries: Fuel economy is the same as CO2. We’ve said it should be done at the federal level. We’ve been supporting going forward. There was a federal process that brought together states, automakers, and federal government, and we’re committed to that plan. We think it’s the right thing for business.” Upton’s proposal, she said, “creates uncertainty. It can take us four years to bring a vehicle to market. Right now we have to produce these cars for 2012 to 2016, and this creates a question about what’s going to happen with 2017.”

Upton has long been one of Detroit’s strongest allies in Congress, but he doesn’t appear to have considered the potential repercussions of his proposals on auto manufacturers. He said he had not spoken with automakers before making his proposals and told National Journal, “We’re going to look at the whole ball of wax” when proceeding with the fight against the federal climate rules.

The confusion highlights what appears to be a legally and legislatively unsteady approach by the House GOP’s newest energy policy point man to fighting President Obama’s climate change policy. The longtime moderate once called climate change “a serious problem that necessitates serious solutions,” and said he believed “everything must be on the table as we seek to reduce carbon emissions.” He has had to reposition himself as more conservative in a new House in which tea party

Republicans have a powerful voice. He has also allied himself with figures and organizations that could burnish his conservative standing.

But he may not have paid as much attention to the actual legislative proposals.

The op-ed with Phillips, which called the climate rules an “unconstitutional power grab that will kill millions of jobs,” was certainly good for his conservative messaging.

But legal experts say that proposal—in addition to throwing the auto industry into regulatory uncertainty—is extremely unusual, if not unprecedented. And they say it could be challenged as a violation of constitutional law.

“The idea of the executive branch regulator waiting until a judicial branch outcome as mandated by Congress—any two might be OK, but when you rig up all three together that sounds like a question on constitutional law, on separation of powers,” said Kevin Book, managing director of ClearView Energy Partners.

Some in the legal community say the op-ed proposal seems aimed at advancing the goals of Americans for Prosperity.

Then on Sunday, Upton appeared on Fox News with House Oversight and Government Reform Chairman Darrell Issa, R-Calif., and offered a different proposal—using the Congressional Review Act, under which Congress can veto regulations within 60 days of their enactment.

But that idea is legally questionable, too, experts said. They point out that the EPA’s climate rules have actually been finalized at different points over the past two years, and that the various 60-day windows to challenge them have come and gone. Indeed, Upton’s proposal of using the Congressional Review Act to undo the rules seems mirrored on a proposal offered in June by Senate Energy and Natural Resources Committee ranking member Lisa Murkowski, R-Alaska, in order to slip into the 60-day window of the EPA’s last key climate rule-making.

Another interpretation of the Congressional Review Act proposal would be to roll back an EPA rule issued in September, which would issue polluters’ permits to emit carbon dioxide. But if that rule is halted, industry would be left open to lawsuits for operating without permits, say experts.

“They really are trying to find a way to undo these requirements, but these particular proposals do the opposite job and boomerang on the constituency that these lawmakers seem intent on serving—the polluters,” said David Doniger, climate policy director for the Natural Resources Defense Council. “I doubt they’ve thought this through.”

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