Climate Policy in the 116th Congress Taking a Page Out of the Republican Playbook
(This is the fourth installment in the Civil Notion series on the impact of the 2018 midterm elections on national climate policy. The…
(This is the fourth installment in the Civil Notion series on the impact of the 2018 midterm elections on national climate policy. The previous articles are at www.civilnotion.com)
”One of the problems that a lot of people like myself, we have very high levels of intelligence, but we’re not necessarily such believers. As to whether or not it’s man-made and whether or not the effects that you’re talking about are there, I don’t see it. “ — Donald John Trump on climate change
The article focuses on a legislative maneuver involving the Congressional Review Act (CRA) that the Democrats in the 116th Congress should consider as a part of their overall strategy to educate voters going into the 2020 general elections.
Bringing the Administration’s contra-climate actions, e.g., rolling back environmental regulations, to the floor of the House and Senate offers the public a much-needed chance to hear climate deniers and defenders explain their respective positions.
November’s midterm election purged Congress of moderate Republicans leaving in its wake hard-core Trumplicans willing to follow their namesake on to the slag heap of hyper-partisanship. Although I remain a man of the middle — still believing in compromise and collaboration — I recognize the near impossibility of finding common ground in the polluted political environment now surrounding Congress — made worse by the bleating of a petulant president. I’m far from alone in my judgment.
A Gallup poll was taken a week after the election and showed that Americans are largely pessimistic that President Donald Trump and the Democrats in Congress will cooperate much over the next two years once Democrats assume control of the House of Representatives in January. The poll compared the 2018 election with the last time Democrats won control of the House. It too was a time when the blood of partisans ran hot.
Having taken the House Democrats are preparing to put climate change back on Congress’ agenda and the national stage. Realistically pro-climate legislation is unlikely to wend its way through Congress and onto the president’s desk while Trumplicans reign over the Senate and occupy the White House.
At one level, Republican refusal to accept the findings of the fourth National Climate Assessment is unfortunate. On another level climate hawks should view the unwillingness as liberating. Unburdened by the possibility of congressional collaboration and compromise Democrats are now free to use the two years of the 116th Congress to devise, debate, and decide — with the help of the American public — what needs to be done and what voters are willing to support.
How Democrats engage the public over the next two years will largely determine where voters in the 2020 presidential election are likely to place climate defense, adaptation, and resilience on their list of federal priorities. In the previous installments of the Civil Notion post-midterm series I wrote about the Republican Party’s move away from climate moderates like Carlos Curbelo (R-FL) and Mia Love (R-UT) and the radicalizing of Senators Graham, McConnell, and Grassley. I also named Democrats in the House likely to chair critical committees like Frank Pallone (R-NJ) on Energy and Commerce and Raúl Grijalva (D-AZ) on Natural Resources and mentioned my concerns over the jockeying for leadership positions within the Democratic caucus — matching the growing number of progressives against their more moderate colleagues.
Today’s article takes the dialogue a step or two further. It focuses on a legislative maneuver involving the Congressional Review Act (CRA) that the new House majority should consider as a part of their overall strategy going into the 2020 elections. The maneuver is meant to focus voter attention on the unwise and aggressive rollback of environmental protections by the Trump administration. It is taken straight out of the GOP playbook — with a few minor tweaks.
The current line of the battle between climate defenders and deniers runs through executive branch agencies and the courts. Almost from the hour Trump was sworn into office he started signing executive orders intended to deregulate the environment and destroy President Obama’s legacy. Four days after his inauguration Trump signed Executive Order 13766 “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects.” Other orders followed with most prompting some form of deregulatory action, e.g., rescission or extensive revision, by the various responsible executive agencies.
The 115th Congress, under Republican rule, was not to be outdone by the White House. A month after gaveling the House to order, Speaker Ryan signed and sent to the president H.J. 38, a joint resolution disapproving the Department of Interior’s stream protection rule. The resolution was introduced pursuant to the Congressional Review Act (CRA or Act).
Joint Resolutions, like proposed legislation, only go into effect if they are signed by the president. H.J. 38 was the first significant piece of legislation signed by Trump and marked only the second time since the CRA was enacted in 1996 that a joint resolution made it all the way through Congress and the White House. The first was S.J.Res. 6 signed into law by President George W. Bush in March 2001.
Between 1996, the year the CRA was enacted, and 2016 72,000 final rules have been submitted to Congress according to the Congressional Research Service (CRS). In all that time the CRA was successfully used to disapprove a regulation only once. When Trumplicans took over in 2017 35 CRA resolutions were introduced into the 115th Congress — 14 were successful.
The CRA is an interesting piece of legislation in that it places Congress actively back in the line of regulatory actions by executive agencies. Legislation like the Clean Air Act directs an executive agency to craft the regulations needed to implement its objectives. Congress lacks the time and expertise required to implement the provisions of most regulatory legislation. It relies on executive branch agencies and departments like EPA and Energy to do the heavy lifting.
Once enacted legislation is given over to the executive branch, Congress ceases to be involved other than through the enactment of follow-on legislation — a circumstance not always appreciated by legislators. Enter the CRA with its provisions establishing an expedited procedure that enables Congress — with the approval of the president — to nullify regulations it doesn’t like.
The Act directs federal agencies to submit copies of major rules and policy guidances to Congress giving it 60 legislative working days to overturn the regulation. Nullifying the regulation requires the passage of a Joint House/Senate Resolution, by simple majorities and the signature of the president. A presidential veto can be overturned by a two-thirds vote of each chamber.
A major rule is defined as having an annual impact of $100 million or more on the economy; increasing costs and prices for certain constituencies such as consumers, state and local governments; or, adversely impacting the competitiveness of US companies. There are several interesting “wrinkles” in the Act that distinguish it from other legislation:
If a Senate committee has not reported the joint resolution out after 20 days, 30 senators can bring a joint resolution to the floor.
A joint resolution under the CRA cannot be filibustered.
Under the CRA, when Congress adopts a joint resolution of disapproval, it nullifies the regulation and prohibits an agency from reissuing the same or substantially similar regulation, unless the new or reissued regulation is supported by a new statute adopted after the date of the joint resolution. It is not clear how different a new regulation must be from a disapproved regulation to satisfy this requirement.
Policy guidance documents issued by an agency also come under the provisions of the CRA.
The CRA provides that any “determination, finding, action, or omission” made pursuant to the joint resolution cannot be challenged in court.
If a rule isn’t submitted to Congress, then it isn’t in effect for purposes of the CRA — even should it already be on the books and enforced. It is possible, therefore, for Congress and the president to disallow a regulation dating back to 1996 that wasn’t submitted to the House and Senate.
It should be noted that certain CRA requirements, e.g., no filibuster, deliberately target the Senate because the Act’s authors understood the Senate’s greater ability [versus the House] to kill a resolution through procedural manipulation. In 1996 Republicans controlled both Congress and the White House.
It is by no means an easy task to get a CRA joint resolution through Congress and the White House. A specific set of circumstance is needed — usually a turnover in party control of the White House in which the incoming president shares a party affiliation with a majority in both houses of Congress. These are the very circumstances that occurred as a result of the 2016 elections that scratched out 14 Obama era regulations.
The sound of one hand clapping?
Given that it is so difficult to drag a CRA resolution over the finish line and no one party will control both Congress and the White House once the 116th Congress is gaveled to order, it is fair to ask: why should climate hawks in Congress consider CRA resolutions of disapproval part of a successful strategy?
Speaker Ryan was asked just such a question about passing CRA resolutions in the Obama-era that he knew would never be signed by the President. His answer — “to force a veto that showed the American people where he [Obama] stands.” Although the Democrats won’t control both chambers of the 116th Congress, joint disapproval resolutions are an opportunity to bring to the public’s attention Trumplican efforts to deregulate the environment and disavow the government’s own findings of the causes and near-term consequences of global warming as presented in the National Climate Assessment.
It’s a tactic that Senator Markey (D-MA) has threatened to use in the fight to keep Trump and company from freezing auto fuel efficiency standards (CAFE) at the 2020 level of 35 mpg rather than the 54.5 mpg the auto industry and the Obama administration agreed to in 2012. Although Markey speculated that a CRA resolution on fuel efficiency standards could attract enough Republican support to make a go of it, he recognizes that the measure would never get past the White House.
The value that Senator Markey and House Speaker Ryan see in CRA resolutions — whether signed by a president or not — derives from the media attention that would be given to it. Unlike a “normal” piece of legislation, CRA resolutions can be lifted out of a Senate committee and onto the Senate legislative calendar after 20 days if no action had been otherwise taken. Regular legislation can easily be buried — particularly if the author is not of the majority party. The provision becomes especially important in the 116th Congress as Senate Democrats will still be in the minority.
Bringing the Administration’s contra-climate actions onto the floor of the House and Senate offers the public a much-needed chance to hear climate deniers and defenders explain their respective positions. The objective of the proposed use of joint disapproval resolutions is open and transparent debate.
Congressional hearings have never been given much play compared to floor votes. There are, of course, exceptions, e.g., confirmation of Supreme Court justices or a budget showdown. It was true even before the era of hyper-partisanship. There are days now when the tension between committee members is so high that minority members don’t even show up. Enmity levels have been particularly elevated over executive branch nominees in the Trump era —
[Chairman of the Senate Environment and Public Works Committee] Barrasso (R-WY) said he would not force a vote on Pruitt without Democrats in attendance — as the Senate Finance Committee had done earlier in the morning on two other nominees.
The nominee Barrasso delayed the vote for was the ethics plagued former Administrator of the EPA Scott Pruitt. It is also the same committee that has jurisdiction over CAFE standards.
With a Democratic House, joint resolutions of disapproval would always begin in the lower chamber. Once passed they are sent on to the Senate for a vote. Because of the 20-day rule, the joint resolution wouldn’t die in committee. In the case of CAFE, Senator Markey and 29 other senators could bring the resolution to the Senate floor — despite resistance by Senate Majority leader McConnell and the chair of the Senate Environment and Public Works Committee.
It’s critical to reiterate that policy guidances come under the requirements of the CRA. A policy guidance is a statement of how an agency should apply a law or regulation. Guidances often have the same effect as a regulation. An example of a guidance is Executive Order 13783, signed by Trump on March 28, 2017. The Order rescinds the Obama administrations calculus for determining the social cost of carbon (SCC) and guides agencies to recalculate it to approach zero.
The SCC reflects the marginal economic cost of adding one ton of carbon pollution to the atmosphere. Conversely, the SCC reflects the economic benefit of removing one ton of carbon. The calculation is central to multiple federal environmental regulations, e.g., establishing methane emission limits. The Administration’s principal excuse for rescinding or ramping down environmental regulations is to reference the cost of compliance to industry and/or consumers — dismissing any suggestion that a rule saves lives or cuts down on the incidence of respiratory disease, etc.
The $64K question in such a situation is, did the Administration inform Congress of its guidance? If it didn’t, then it would behoove Democrats to introduce a House/Senate Joint Resolution of disapproval. I would, however, advise them to wait until after the new year when the 116th is sworn in.
A question arises as to whether voters would be at all interested in hearing about SCC? Although a very complex calculation, the social cost of carbon in its simplest form is about the value this Administration places on human life in terms of morbidity or mortality.
Referring once again to CAFE standards, the Administration estimates that 1400 more lives will be lost at its proposed 35 mpg target — the approximate 2020 number — compared to the 54.5 mpg number that the auto industry agreed to with the Obama administration. Although a ridiculously low, the estimate reflects an unnecessary loss of life given that the industry has already done most of what’s needed to reach the 54.5 level.
Why do 1400 people need to die from auto emissions? Moreover, the Administration gives no credit to the number of jobs that are created by innovative technology or the money consumers would save in gas costs. The point here is that the messages can be simple and sensible even if the subject is complex.
Climate hawks in Congress need to pick their battles — carefully — given how many rules and policy guidances there are. A critical criterion is to pick subjects that are important not just to core constituencies. As I have discussed throughout this series the midterms reflect a significant disparity between urban and rural voters.
In choosing regulations to highlight with a joint resolution of disapproval, Democrats are well-advised to look with a critical eye at issues impacting Trumplican core constituencies, e.g., rural communities as well as other at-risk populations, e.g., low-income communities. It is well-established that these communities already bear a disproportionate amount of risk because of the location of coal-fired power plants, loosely regulated waste sites, pipeline rights-of-way, etc. With Democrats in control of the House, the use of the CRA can be paired with committee hearings to great advantage.
The next two years are climate-critical. The refusal of Trumplicans to acknowledge the science-based truth of what 97 percent of the global science community is telling us is in store over the next dozen years if the rate of warming is not slowed is insane.
I recognize that the use of the Congressional Review Act I am suggesting is theatre; however, I believe it worth the price of admission. To have any chance of successfully slowing the rate of warming and maintaining a habitable environment for current and future generations require the active engagement of the federal government. There are simply things that consumers, state and local governments and the private sector cannot do on their own.
The 2018 midterm elections have opened a door for Congress’ climate hawks to walk through. At the same time, the results of state ballot initiatives send signs of caution. It is critical for defenders not to make the mistakes of overreaching and overpromising — most important is not to outrun what voters are ready to support — which can be changed through honest dialogue.
The term of the 116th Congress is a time to educate voters going into the 2020 elections. Divided government will not get the nation to where it needs to be either to slow the rate of warming or to put into force resilience and adaptation measures. Now the break is mostly along party lines. If enough voters across the political spectrum come to understand the economic and environmental dangers of fossil energy and the benefits of a low-carbon economy, perhaps it will make less difference tomorrow which party is in power.
In the meantime, I think a bit of theatre is called for.