[Congressional Record Volume 155, Number 189 (Monday, December 14, 2009)]
[Senate]
[Pages S13154-S13156]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             CLIMATE CHANGE

  Ms. MURKOWSKI. Mr. President, I know the Senate is focused on health 
care, but I have come to the floor to speak on another very important 
topic and that is climate change. I wish to discuss a recent action by 
the Environmental Protection Agency and the consequences that could 
entail for our economy and why Congress must prevent it from taking 
effect. I remind my colleagues that I have committed to a careful 
evaluation of all the options to address climate change in order to 
develop an approach that will benefit both our environment and our 
economy. Over time it has become increasingly apparent that some 
approaches are better than others. While we have not yet found that 
right approach, we have certainly identified the wrong approach: EPA 
regulation of greenhouse gases under the Clean Air Act. I believe this 
option should be taken off the table so we can focus our attention on 
more viable policies.
  My concerns about this led me to file an amendment in September that 
would have limited EPA's ability to regulate certain greenhouse gas 
emissions for a period of 1 fiscal year. I offered my amendment for two 
reasons: first, to ensure that Congress had sufficient time to work on 
climate legislation and to ensure that the worst of our options, EPA 
regulation, did not take effect before that point. Even though Congress 
was and today remains nowhere close to completing legislation, the 
majority chose to block debate on my amendment. Since then the EPA has 
continued its steady march toward regulation. Last week the 
Administrator signed an endangerment finding for carbon dioxide and 
five other greenhouse gases. This finding is supposedly rooted in 
concerns about the public health and the public welfare. What it really 
endangers is jobs, economic recovery, and American competitiveness. 
Some have praised the endangerment finding as a step forward in our 
Nation's efforts to reduce emissions. They view it merely as an 
affirmation of the scientific assertion that human activities 
contribute to global climate change. Such a conclusion is within EPA's 
authority and appears to be appropriate given the years of research 
indicating that this is the case. Those same scientific findings 
underscore my desire to address this challenge in a proactive way.
  Unfortunately, the endangerment finding is not just a finding. 
Despite what some in the administration have claimed, its effect is not 
limited to the science of global climate change. In reality, the 
finding opens the doors to a sweeping and convoluted process that will 
require the EPA to issue economywide command and control regulations. 
Once that finding is finalized, the EPA no longer has discretion over 
whether they can impose regulations.
  As the Administrator noted last week, the agency is now obligated and 
compelled to take action. This is where it becomes evident that EPA 
regulation is an awful choice for climate policy. If a pollutant is 
regulated under one section of the Clean Air Act, it triggers identical 
treatment in other sections of that statute. So while the EPA initially 
intends to address only mobile source emissions, meaning vehicles, the 
agency will also be required to regulate stationary source emissions as 
well.
  Think of it this way: If the EPA attempts to control any greenhouse 
gas emissions, the agency will be required to control all greenhouse 
gas emissions. Because EPA regulations will consist of command and 
control directives rather than market-based decisions, this approach 
will increase the price of energy, add greatly to administrative costs, 
and create many new layers of bureaucracy that must be cut through.
  This is why you often see EPA regulations described as intrusive or 
Byzantine or maze like. They are all of the above. While the permitting 
process that will be created is unclear, the consequences of imposing 
these regulations are not. The bottom line is, our economy will suffer. 
Businesses will be forced to cut jobs, if not close their doors for 
good. Domestic energy production will be severely restricted, 
increasing our dependence on foreign suppliers as well as threatening 
our national security. Housing will become less affordable and consumer 
goods more expensive, as we see the impacts of the EPA's regulations 
ripple and break their way across our economy.
  In the wake of the majority's decision to block my effort to 
establish a 1-year timeout for this process, we now find ourselves in a 
bit of a bind. Even though Congress is working on climate legislation, 
the EPA is proceeding with a tremendously expensive regulatory scheme. 
It appears increasingly likely that the EPA will finalize its 
regulations before Congress has an opportunity to complete debate on 
climate legislation. That outcome is simply unacceptable as our Nation 
struggles to regain its economic footing.
  Today I have come to announce that I intend to file a disapproval 
resolution under the provisions of the Congressional Review Act related 
to the EPA's endangerment finding. I have this resolution drafted. I 
will introduce it as soon as the EPA formally submits its rule to 
Congress or publishes it in the Federal Register, as is required by 
law. My resolution would stop the endangerment finding. In general 
terms, I am proposing that Congress veto it. Like my previous 
amendment, this one is also rooted in a desire to see Congress pass 
climate legislation because the policy is sound on its own merits and 
not merely as a defense against the threat of harmful regulations.
  While I know that passage of this resolution will be an uphill 
battle, I believe it is in our best interest. It is the best course of 
action available to us. This is a chance to ensure that Congress, not 
unelected bureaucrats, decides how our Nation will reduce its 
emissions.
  To understand why my resolution is so critically important, we have 
to dig deeper into the economic consequences that will result from 
regulations based upon the endangerment finding. Because there are no 
regulations within

[[Page S13155]]

the finding itself, the agency has omitted any projection of what they 
might cost our Nation.
  Even though the EPA has not prepared projections of what these 
regulations will cost, I expect the totals would be staggering. The 
price tags attached to the climate bills pending in the Senate, which a 
majority of Members have concluded are too high, would almost certainly 
pale in comparison.
  There are a few figures that can help us put the potential costs in 
perspective. In one of its recent proposals, the EPA noted that some 6 
million ``sources'' could be required to obtain new operating permits 
if greenhouse gases are regulated. The word ``sources'' refers to the 
businesses, schools, hospitals, and other fixtures found in every town 
in America that would suddenly face scrutiny due to their carbon 
footprints. Farms, landfills, and any other ``source'' that emits more 
than 250 tons of greenhouse gases per year would be caught in the same 
net.
  Facing the heaviest regulation will be the facilities that are 
subject to the Clean Air Act's ``Prevention of Significant 
Deterioration'' permitting process. This is referred to as ``PSD.'' 
Today, 300 facilities are covered by that requirement. Under EPA 
regulation, that number would soar to 40,000. The PSD process prevents 
existing facilities from making certain modifications until the EPA has 
granted its approval. The same holds true for new construction as well. 
Any facility expected to emit more than 250 tons per year would not be 
allowed to break ground until their owners have secured the EPA's 
permission to proceed.
  The PSD process is already hugely expensive and time-consuming for 
affected facilities. It can take years, and cost tens if not hundreds 
of thousands of dollars, to navigate the PSD process. And that is true 
today, well before the number of facilities it covers is increased by 
an order of magnitude.
  Earlier this year, in sharing their reference for congressional 
action, the editors of the Washington Post provided a pretty good 
description of what EPA regulation would be like on a daily basis. They 
stated in their editorial:

       The EPA in theory . . . could go shopping mall by shopping 
     mall, apartment building by apartment building . . . But even 
     plant by plant, how can you ``limit'' greenhouse gas? The 
     short answer is, you can't. Or, no one knows. Or, you can't, 
     yet. Take, for example, a coal-fired power plant. EPA 
     regulation would be triggered only when someone wanted to 
     build one or update an old one. At that point, the agency 
     could demand that the plant use the ``best available control 
     technology'' (BACT) to limit emissions.

  The editorial goes on to state:

       Right now, no such BACT exists for coal-fired plants beyond 
     better efficiency measures. A lot of attention has been 
     focused on carbon capture and sequestration, but it wouldn't 
     be considered BACT until it was up and running successfully 
     in a coal-fired power plant somewhere in the United States. 
     Even then, its use would have to be weighed against a number 
     of other factors, such as the amount of energy used, the 
     environmental impact and the effect on the output of other 
     regulated pollutants. If past practice applies, the issuance 
     of the final permit would be followed by a series of 
     lawsuits. The whole process could take a decade or more--and 
     that would be multiplied hundreds or thousands of times 
     across the country.

  No one is more aware of how damaging these regulations could be than 
the EPA itself, so it is no surprise the agency has sought to 
dramatically increase the Clean Air Act's regulatory threshold--from 
250 tons per year right now, to 25,000 tons per year for greenhouse 
gases. As the EPA admitted earlier this year, if the Clean Air Act's 
current threshold is not lifted, ``the administrative burdens would be 
immense, and they would immediately and completely overwhelm the 
permitting authorities''--meaning, of course, the EPA and its State and 
local counterparts.
  Now, I do give some credit to the EPA for recognizing that the 250-
ton per year threshold is ``not feasible'' for greenhouse gases. While 
most pollutants are measured in much smaller amounts, greenhouse gases 
are far more abundant.
  After all, nearly every form of economic activity results in at least 
some level of emissions. But I am also deeply disturbed that instead of 
recognizing and accepting that the Clean Air Act is simply not suited 
for this task, the agency attempted to make it so by ignoring its 
explicit, statutory requirements.
  As we all know, whenever an executive agency fails to adhere to the 
laws passed by Congress, it opens itself up to litigation. The EPA's 
so-called tailoring rule is no exception, and I fully expect that 
lawsuits will be filed if the agency issues it. Once the rule is 
challenged, I expect the courts will reject it, as it has no legal 
basis, and restore the regulatory threshold to 250 tons per year. At 
that point, the agency will be mired in the regulatory nightmare it 
hopes to avoid.
  In the meantime, it is also worth noting that the EPA is proceeding 
with the regulation of greenhouse gases even though the tailoring 
proposal is not part of the existing statute. So for all of the 
agency's promises of regulatory relief, and a safety net to help 
minimize the pain associated with these regulations, there is nothing 
behind that yet. And given the larger conversation that needs to take 
place about amending the Clean Air Act, that relief may never 
materialize.
  Given the tremendous economic, administrative, and bureaucratic 
drawbacks associated with EPA regulation, it should come as no surprise 
that Members of the majority, the administration, and environmental 
groups have expressed their preference for congressional legislation.
  The Democratic chairman of the House Agriculture Committee declared 
that EPA regulation would result ``in one of the largest and most 
bureaucratic nightmares that the U.S. economy and Americans have ever 
seen.'' He went on to add, ``Let me be clear, this is not a 
responsibility we want to leave in the hands of EPA.''
  The most senior Member of the House of Representatives, a Democrat, 
who has served our country for more than half a century, has concluded 
that EPA regulation would create a ``glorious mess.'' He has also said 
that, ``As a matter of national policy, it seems to me to be insane 
that we would be talking about leaving this kind of judgment, which 
everybody tells us has to be addressed with great immediacy, to a long 
and complex process of regulatory action.''
  Shortly before I filed my amendment in September, the EPA 
Administrator herself insisted that ``new legislation is the best way 
to deal with climate change pollution.'' You wouldn't guess that by 
looking at the efforts of some in her agency as they helped to defeat 
my amendment, but just last week, she reiterated the claim by stating, 
``I firmly believe . . . and the president has said all along that new 
legislation is the best way to deal with climate change.''
  With such widespread, high-level, and bipartisan agreement that EPA 
regulation is such a bad idea, you would think it would be easy to 
suspend the EPA's regulatory efforts. Unfortunately, you would be 
mistaken. Many seem convinced that the threat of EPA regulation will 
force Congress to work more quickly than it otherwise would.
  This is not a conspiracy theory. It is an open and well-established 
strategy on the part of the administration, confirmed just this week 
when a senior White House economic official was quoted as saying ``If 
you don't pass this legislation, then . . . the EPA is going to have to 
regulate in this area . . . And it is not going to be able to regulate 
on a market-based way, so it is going to have to regulate in a command-
and-control way, which will probably generate even more uncertainty.''
  An author of the House cap-and-trade bill has posed the question: 
``Do you want the EPA to make the decision or would you like your 
Congressman or Senator to be in the room and drafting legislation?'' 
going on to say that, ``Industries across the country will just have to 
gauge for themselves how lucky they feel if regarding EPA regulation.'' 
The Wall Street Journal has referred to this as the `` `Dirty Harry' 
theory of governance.''
  This approach is often likened, rather starkly, to ``putting a gun to 
Congress's head.'' Personally, I believe that is a terrible way to 
pursue climate policy, and beyond that, a terrible way to govern this 
country. It is diffcult to grasp how or why Congress would feel 
compelled to enact economically damaging legislation in order to stave 
off economically damaging regulations.

[[Page S13156]]

We are being presented with a false choice that should be rejected 
outright. The majority and the administration are saying: Don't make us 
do this. My answer to this is, simply: You don't have to.
  Before concluding, I want to spend a few minutes putting to rest some 
of the criticism that will surely follow my decision to offer a 
disapproval resolution. During the debate over my last amendment, 
several baseless arguments were made. So I would like like to challenge 
anyone who finds reason to oppose my resolution to keep their remarks, 
and thereby this debate, as substantive as possible.
  First, I want to reiterate my desire to take meaningful action to 
reduce our Nation's greenhouse gas emissions. Such a policy can and 
should be drafted by Congress, and designed to both protect the 
environment and strengthen our economy. I was a cosponsor of a climate 
bill last Congress, and I am continuing to work on legislation that 
will lead to lower emissions. Senator Bingaman and I spent more than 6 
months developing a comprehensive energy bill in committee, and have 
now held six hearings on our climate policy options.

  Next, my resolution is not meant to run contrary to the Supreme 
Court's decision in Massachusetts v. EPA. Remember, I previously sought 
a 1-year delay of this process that would have allowed mobile source 
emissions to be regulated. That amendment was blocked by the majority 
from even being considered and, at this point, I am left with little 
choice but to raise the question of whether the Clean Air Act is 
capable of effectively regulating greenhouse gas emissions.
  Finally, I am not interested in trying to embarrass the President, 
either here at home or on the international stage. I have stated 
publicly that I wish the President well in making progress on 
international issues. And I think it is safe to acknowledge that I 
didn't choose to release the endangerment finding on the opening day of 
the Copenhagen climate conference; that was the EPA's decision. As 
Administrator Jackson reportedly said, the EPA ``tried to make sure we 
had something to talk about'' in Copenhagen.
  Mr. President, I understand I may have come to the end of my 20 
minutes. I ask unanimous consent for a minute and a half to conclude my 
remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Ms. MURKOWSKI. I thank the Chair.
  If the administration truly wanted something to highlight in 
Copenhagen, it should have prioritized climate legislation over health 
care. The Senate majority could have devoted weeks spent on a tourism 
bill and other matters to working through a climate bill here on the 
floor. And even if climate legislation could not be agreed to, Congress 
has now had nearly 6 months to take up the comprehensive bill we 
reported from the Energy Committee. That bill would have allowed the 
President to highlight significant accomplishments on energy 
efficiency, clean energy financing, and renewable energy generation. 
Instead, he is left to tout regulations that his administration doesn't 
really want, that a wide range of stakeholders dread, and that many 
Members in both Chambers of Congress actively oppose.
  We need to only look back to the development of the Clean Air Act 
itself for an example of how this process can, and should, work. The 
product of both Presidential leadership and congressional unity, the 
1970 Clean Air Act was unanimously passed by the Senate. I hope the 
current administration will take note of that example. And should we 
ever reach a point where the President is able to sign climate 
legislation into law, I truly hope it will be the result of his 
administration having brought Congress together to complete this 
important task.
  Right now, though, the administration and the majority in Congress 
continue to choose a different path. Threatening to disrupt the 
Nation's economy until Congress passes a bad bill by the slimmest of 
margins won't be much of an accomplishment, nor is that approach worthy 
of the institutions and people we serve. It isn't appropriate for a 
challenge of this magnitude. No policy that results from it will 
achieve our common goals or stand the test of time.
  As I said earlier, I am submitting this resolution because it will 
help prevent our worst option for reducing emissions from moving 
forward. The threat of EPA regulations are not encouraging Congress to 
work faster, they are now driving us further off course and increasing 
the division over how to proceed.
  I understand that some are comfortable with the threat of EPA 
regulations hanging over our heads. But, in closing, I would simply 
remind my colleagues of an observation once made by President 
Eisenhower:

       Leadership is the art of getting someone else to do 
     something you want done because he wants to do it.

  What we are dealing with right now isn't leadership--is an attempt at 
leverage. The EPA's endangerment finding may be intended to help 
protect our environment, but the regulations that inevitably follow 
will only endanger our economy. That lack of balance is unacceptable. 
We can cut emissions, but we can't cut jobs. We can move to cleaner 
energy, but we can't force our businesses to move overseas. It is past 
time to remove the EPA's thinly veiled and ill-advised threat, and we 
can do that by passing my resolution and giving ourselves time to 
develop a real solution.

  With that, I yield the floor, and I thank my colleague from 
Connecticut for his courtesy.
  The PRESIDING OFFICER (Mrs. Shaheen). The Senator from Connecticut is 
recognized.

                          ____________________