Resolution Of Disapproval Of EPA Rule-Motion To Proceed

Floor Speech

Ms. MURKOWSKI. Madam President, during the Memorial Day recess, we received two pieces of alarming news that should inform the work of every Member in this Chamber. First, we learned the national debt has surpassed $13 trillion in total, and then shortly after that, we learned that nearly all the jobs that were added in May came from temporary census positions. The private sector created just 41,000 jobs last month--many fewer than expected and certainly a far cry from the pace that will allow us to dig out from under this economic recession.

I think we all recognize there is no question that our recovery is still fragile--very much in doubt. It is also quite clear it will take some time for millions of unemployed Americans to find their jobs and get back on their feet again. These tough facts should encourage us to focus on these policies that create jobs, that reduce our debt, and at the same time should encourage us to guard against policies that fail in either or both of those areas.

Madam President, we are here today to debate a policy that works against both of those goals--the Environmental Protection Agency's effort to impose economy-wide climate regulations under the Clean Air Act. The sweeping powers being pursued by the EPA are the worst possible option for reducing greenhouse gas emissions, and there is broad bipartisan agreement that this approach would forgo all of the benefits, all of the protections that are possible through legislation. It would reduce emissions at an unreasonably high cost and through an unnecessarily bureaucratic process. It would amount to an unprecedented power grab, ceding Congress's responsibilities to unelected bureaucrats, and move a very important debate, a critical debate, from our open halls to behind an agency's closed doors.

This approach should have been, could have been taken off the table long ago. Yet because the EPA is determined to move forward aggressively and because neither Congress nor the administration has acted to stop them, it is now in the process of becoming our Nation's de facto energy and climate policy.

Because this is our worst option to reduce emissions and Congress needs time to develop a more appropriate solution, I have introduced a resolution of disapproval--I introduced this back in January--to halt the EPA's regulations. My resolution does not affect the science behind the endangerment finding, but it will prevent the finding from being enforced through economy-wide regulations.

Forty other Senators here in this body have joined me and are cosponsors of this effort. Our resolution has garnered significant support among the American people, and from the day it was introduced, we have had individuals and we have had groups and organizations from all across the country that have expressed their support and their appreciation. It really is a tremendous coalition, a significant coalition from farmers and manufacturers, to small business owners, to fish processors. There are more than 530 stakeholder groups that have endorsed our resolution's passage, and I will tell you, when you look at some of those groups, you would not put them in a category where you would say: Well, this is an entity that is standing up to fight, to push back against the EPA. But I will suggest to you that the broad range of stakeholders is really quite impressive.

Despite that support, I will still be the first to admit that we face an uphill battle. We oppose the EPA's regulations because of their costs, most definitely. But, unfortunately, that seems to be precisely why some Senators have gone out front to support them, hoping these economic costs will be so onerous that it will force us here in the Congress, here in the Senate, to adopt legislation we otherwise wouldn't move to do.

This has been an interesting, sometimes difficult and contentious several months as we have moved forward with this resolution of disapproval. Personal attacks have been directed at supporters of this resolution in an effort, I think, to intimidate others from adding their names.

The EPA Administrator has, somewhat incredibly, suggested our resolution was somehow related to the oilspill that is ongoing in the gulf. Some have even claimed the resolution is a bailout for the oil companies and are trying to make sure we don't let another crisis go to waste--in other individuals' terms--in their efforts to pass sweeping cap-and-trade measures. I would suggest that the only similarity I see between the spill in the Gulf of Mexico and the EPA's regulations is that both of these are unmitigated disasters. One is happening now; the other one is waiting in the wings if Congress fails to adopt this resolution.

This decision--where we are today here in the Senate debating this resolution of disapproval--ultimately boils down to four substantive factors. The first one is the inappropriateness of the Clean Air Act for reducing greenhouse gas emissions. The second is the likelihood that the courts will strike down the tailoring rule. Then we also have the lack of economic analysis from the EPA, which is stunning--that we do not have a better sense in terms of what the economic impact of these regulations will be. Then finally and certainly above all else is the undisputed fact that climate policy should be written here in Congress. It is not just Lisa Murkowski who says that, and it is not just the other 40 Senators who have signed on as cosponsors to this resolution of disapproval; it is everyone from the President, to the Administrator of the EPA, to colleagues on the House side who have said time and time again that it should be the Congress, it should be those of us who are elected Members of this body who set the policy of this country and not the unelected bureaucrats within an agency.

I would like to speak to each of these four factors in a little greater detail, so I will start by examining why the Clean Air Act is such an awful choice for reducing these emissions. I have explained this many times before, so I will reiterate two main points here--first is the way these regulations are carried out.

You have command-and-control directives that are issued by the government that affect every aspect of our lives, rather than market-based decisions made by consumers and businesses. I wish to reinforce that, the fact that these are directives that will impact every aspect of our lives.

When we were debating health care reform here on this floor not too many months ago, it was repeated time and time again that it was so important we get this right because health care reform will impact one-sixth of our economy. Well, I would suggest to you that when we are talking about climate policy, that is something which is going to impact every aspect--100 percent--of our economy.

The system imposed by the EPA will entail millions of permit decisions--millions of permit decisions--by midlevel EPA employees, without effective recourse, and it will leave regulated entities with very little flexibility to comply.

Another reason the Clean Air Act is extremely complicated for reducing greenhouse gas emissions: the Clean Air Act's explicit regulatory thresholds. They absolutely put an exclamation mark on why this law is such a poor choice for addressing climate change.

Under the Clean Air Act, if you emit more than 100 or 250 tons of a pollutant each year, you must acquire a Federal air permit. These relatively low limits make sense for conventional air pollutants that are emitted in small quantities, but they become wildly problematic when dealing with a substance emitted in huge volumes through nearly every form of commerce, such as carbon dioxide is.

So the question needs to be asked, then, how big is this new regulatory act we are talking about? The EPA recently projected that some 6.1 million sources could be required to obtain new title V operating permits. Under the current regulations, the EPA is dealing with about 15,000. So the EPA would now be charged with moving up dramatically from regulating and issuing about 15,000 title V operating permits to some 6.1 million permits. Whom does this include? It would include millions of residential buildings, small businesses, schools, hospitals, and restaurants found in every town in America.

Over time, the EPA's approach would increase their regulation by an order of magnitude, and the consequences would be just as enormous. And no one is more aware of this very uncomfortable fact than the EPA itself. They know they can't go from the 15,000 permits they currently deal with on an annual basis up to 6.1 million permits. That is why the Agency has attempted to very dramatically increase the threshold for greenhouse gases in its tailoring rule. They are unhappy with the plain language, the very direct language of the Clean Air Act. The Agency plans to lift its limits up to 1,000 times higher than Congress has directed.

So what you have is a situation where the EPA has simply not accepted that the Clean Air Act is not structured for this task, and instead they have attempted to make it so by ignoring the plain language--the plain language that says you have to regulate at 100 or 250 tons per year. They are effectively unilaterally amending the Clean Air Act.

Equally astounding is that by temporarily relieving part of a permitting burden, the EPA is claiming that consumers and businesses--the people who purchase and the people who use the energy--will face no economic impact, which is incredible to believe.

I ask my colleagues to think about the logic behind the tailoring rule. The EPA is asking us to accept that while greenhouse gases are not in the Clean Air Act, the Congress clearly intended them to be regulated under it. At the same time, we are expected to believe that while explicit regulatory thresholds are in the act, Congress meant for the EPA to ignore them. Well, Madam President, I would suggest to you that is a pretty thin read, and it becomes even thinner when you consider the changes that are made between the tailoring rule that was proposed just last year and then the final rulemaking that was issued just last month.

In last year's draft, what you saw was the EPA planning to ratchet down to the Clean Air Act's actual threshold levels--to get down to the 250 tons per year--and to put that into effect over the course of the next 5 years. Now the EPA is suggesting that it may exempt entire sectors and never even reach the statutory limits. Think about it. What happens then? That is when the lawsuits pop up. This is not going to provide the level of certainty I think those in business are seeking. What you will see is lawsuits as some sectors and some sources are regulated while others are not. And I would suggest that difference between the tailoring proposal from last year and where we are now is driven not by the law but by fear of the political backlash out there--the outrage from people all over the country in terms of the negative economic impact to them and their families and their communities.

That is why it is tough to find an impartial legal expert who believes this tailoring rule will actually hold up in court. Consider a speech given last year by Judge David Tatel of the DC Circuit Court of Appeals. This was a speech on how the EPA can avoid being sued over its rulemakings. Judge Tatel said:

..... whether or not agencies value neutral principles of administrative law, courts do, and they will strike down agency action that violates those principles--whatever the President's party, however popular the administration, and no matter how advisable the initiative.

Those were the comments from a DC Circuit judge specifically on this issue as to how the EPA avoids lawsuits.

Let me move to the third area of concern I have with EPA moving to regulate in the area of greenhouse gas emissions--the economic consequences of EPA regulation. We have to ask the question: What exactly are those consequences? Believe it or not, at this point in time we still do not know because the EPA has refused to provide projections of the economic impacts. In the various rulemakings out there, the Agency has engaged in something of a shell game. They are either hiding or they are simply not considering the economic cost.

The EPA has also ignored requests from Members of Congress. I have asked them, and other Members of Congress have asked, to conduct this very important analysis, but to this day the Agency still has not provided anything close to a full projection of the economic impact its economy-wide climate regulations will have.

I guess there were a couple of reasons. The EPA either has no cost estimates or they know they are too astronomical to calculate, and they do not want them released. My staff has had numerous briefings with EPA officials, and they have been told essentially that we will not know how much these regulations cost until the best available control technologies are imposed on the regulated entities; that is, until the EPA figures out how to deal with what it signed itself up for.

The problem is, the best available control technologies remain completely undefined at this point. It could mean efficiency improvements, expensive add-on technologies, or even fuel-switching requirements. Over time, the EPA would have very little choice but to impose all of those requirements and more, regardless of the consequences.

Again, it is not hard to find this quite amazing and alarming. We need to be growing our economy not paralyzing it. Everything we do right now within this body should be focused on how we grow our economy, how we grow the jobs from Maine to Alaska and points in between. We know the national unemployment rate remains at almost 10 percent. Private sector job growth is anemic. Yet as millions of Americans are doing everything they can just to find work, bureaucrats in Washington, DC, are contemplating regulations that would destroy these opportunities.

Worse still, the people of our States have no voice in this bureaucratic process. They are on the verge of being subjected to rules, subjected to regulations that will directly impact their lives, their livelihoods, their economic opportunities, without ever having an opportunity to express their concerns through their Representatives in Congress.

That brings me to my final point. Politically accountable Members of the House and the Senate, not unelected bureaucrats, must develop our Nation's energy and climate policies. It is as direct as that. Those policies must be able to pass on their own merits instead of serving as a defense against ill-considered regulations.

I have said this before, but it bears repeating: Congress will not pass--should not pass--bad legislation in order to stave off bad regulations. We are neither incapable nor unwilling to legislate on energy and environmental policy. We have demonstrated this in the past. We did this with landmark environmental legislation such as the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act. We can, we should, and we will deal with these environmental challenges that face us. But forgoing legislation in favor of regulation would sacrifice the priorities and protections that are sought by just about every Member of the Senate.

The things that are being considered when we talk about climate legislation are worker training, funding for clean technologies, energy security enhancements, border adjustments, manufacturing concessions--these would all go by the wayside if climate policy is directed through regulation as opposed to legislation. There will be no agricultural offsets, no free allowances, no banking, and no borrowing under the Clean Air Act. There will be no funding for climate research or adaptation, no protection for consumers, and no assistance for businesses or workers.

I do understand some Members say they will only support climate legislation that puts a price on emissions. They are frustrated that we in the Senate have not done that--have not agreed to do that yet. But I do not believe that mandating higher energy costs and imposing regulations on consumers and businesses is the only way to solve this challenge.

Some have likened the EPA regulation as the gun to the head of Congress that will force us somehow to act more quickly on climate legislation than we otherwise would. I think, sadly, a few Members of the Senate have actually bought into this coercive strategy. Throughout the yearlong debate on this issue--and it has been just about a year. It was last September that I attempted to introduce legislation that would put the EPA in a 1-year timeout. I was not allowed to bring that measure to the Senate floor. But throughout this yearlong debate on the issue, opponents have refused to discuss the actual impacts of EPA regulation. So I want my colleagues to listen today, listen to the debate. See if any opponents actually defend such regulation as being good for America.

Instead, we are going to hear red herrings about science, about fuel standards, about the oilspill. But as much as some would want it to be, this debate is not about the science of climate change. It is not a referendum on any other legislation that is pending in the Senate, nor is it about fuel efficiency. The Department of Transportation is and has been in charge for 35 years now, and we do not need another agency and another standard thrown into the mix to do the same job.

We updated our Nation's CAFE standards less than 3 years ago to at least 35 miles per gallon, and we left DOT in charge of their administration. We also outlined a very rational process for standards for medium- and heavy-duty trucks. Every target set by this administration can be met with existing authorities. As the Department of Transportation has admitted, our resolution does not directly impact their ability to regulate the efficiency and thus the greenhouse gas emissions of motor vehicles.

There is one very small potential exception and that is air-conditioning, but I have very little doubt that we would gladly provide EPA with the specific authority to regulate those systems instead of broad powers over our entire economy.

The EPA does not need to take over this process, and it should not be allowed to do so under a law that was never intended to regulate fuel economy. I understand concerns about a patchwork of standards and how difficult it would be for the industry to comply. But while we had one national standard at the start of 2009, we now have two national standards set by two Federal agencies driven by California's standards. I have a letter from the National Automobile Dealers Association dated just yesterday that spells this out quite clearly. They indicate that it in no way helps us to have, again, two national standards set by two Federal agencies. The best way to avoid a messy patchwork would be to pass our disapproval resolution, revoke California's waiver, and allow one Federal agency to set one standard that works for all 50 States.

Bringing climate science, the oilspill, and fuel economy into this debate are attempts at misdirection. They are red herrings that are intended to convince Members to oppose the resolution of disapproval. But this debate has nothing to do with those topics. It is about finding the best approach to reduce emissions and defending against policies that fail to strike an adequate balance between the environment and our economy. It is about maintaining the separation of powers between the legislative and the executive branches as our Founding Fathers intended and rejecting an unprecedented overreach by the EPA into the affairs of Congress. At its core, this is a debate about jobs, about whether we should seek conditions that will lead to their creation or enable policies that will destroy them.

This is our chance to make sure that Federal bureaucrats do not place a new burden on millions of hard-working Americans at a time that they cannot afford it and in a way they cannot reject. The time has come to take the worst option for regulating greenhouse gases off the table once and for all.

Under the procedures of the Congressional Review Act, I accordingly move to proceed to the consideration of S.J. Res. 26. I encourage Members of this Chamber to support debate on this measure and to vote in favor of both the motion to proceed and final passage.

I know under the unanimous consent agreement, this morning and throughout the day it is 30 minutes per side. I am not certain how much time I have consumed this morning, if the chair can instruct me?

The ACTING PRESIDENT pro tempore. The Senator has 2 minutes remaining

Ms. MURKOWSKI. I know Senator Lincoln was hoping to come over this morning. What I will do at this point in time, if I may reserve those 2 minutes, seeing that Senator Lincoln is not yet here, we can move to the Democratic side of the aisle, if Senator Boxer is ready to proceed.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

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Ms. MURKOWSKI. Mr. President, as we conclude the day's debate on this resolution of disapproval, I will say that the debate has been good. Many points have been raised, and I appreciate that. I will say, though, as I have listened throughout the course of the 6 hours, I have heard consistently on the side of those who support this resolution of disapproval--I have heard consistently that this is about jobs, it is about the health of our economy, it is about the strength of the economy as a whole and about really ensuring, again, that our Nation remains strong while at the same time we take care of our environment. These are not mutually exclusive goals--never have been and never will be.

I want to address some of the statements that have been made here and made very clearly.

First is the issue of overreach--overreach by the EPA into the domain of the legislative branch. This has been spoken to so many times as we have discussed this resolution of disapproval--that the overlapping triggers that are contained in the Clean Air Act effectively give the EPA control of our Nation's energy and climate policy. I do not think that is a sane and rational policy when we cede our authority in the legislative branch to effectively allow our energy and climate policy to be developed and implemented by an agency, that being the EPA. This has huge implications for the separation of powers and our constitutional system of checks and balances, not to mention what I said at the outset--the jobs and the recovery from this economic recession.

This is not a debate about the science. Science has been discussed a lot. Really, this is about how we respond to the science. We are not here to decide whether greenhouse gas emissions should be reduced. We are here to decide if we are going to allow them to be reduced under the structures of the Clean Air Act. Unlike what some of my colleagues have said, this resolution doesn't gut the Clean Air Act at all. It doesn't address it. It does not change the text in any way. It only prevents a massive expansion of its authority.

It has been suggested that somehow or other this resolution is a bailout; somehow or other this is tied to the disaster in the gulf; somehow or other this is all tied to the oil industry. Again, this is absolutely not anything that has to do with the disaster in the gulf, in no way, shape, or form.

The suggestions that somehow or other this is all about big oil belies the coalition of support that has been built across this country, from Maine to Alaska and all the points in between--530 organizations, different stakeholders all over the board, in terms of why they feel EPA should not be setting climate policy for this country.

You cannot see this chart because the print is so small. I apologize for that. But there are 530 organizations, businesses, stakeholders, and advocacy groups that have endorsed this bipartisan resolution. So you look through here and you say: OK, are these all the oil and gas organizations that are in this country? But I will just direct you to some of the ones from, for instance, Texas. Texas is an oil- and gas-producing State.

Look at Texas. There is the Texas Agricultural Cooperative Council, the Texas and Southwestern Cattle Raisers Association, Texas Aromatics, Texas Association of Agricultural Consultants, Texas Association of Dairymen, Texas Cattle Feeders Association, Texas Citrus Mutual, Texas Cotton Ginners' Association, Texas Independent Ginners Association, Texas Food Processers Association, Texas Forestry Association, Grain and Feeders Association, Nursery and Landscape Association--and I am only halfway through the Texas organizations that support our resolution of disapproval.

So the suggestion that somehow this is all tied into the oil industry, again, just simply does not comport with what has been happening. Why are these organizations standing up and speaking out and saying this is not the path we should be taking with climate? It goes back to the jobs. It goes back to the issue of where we are as an economy. It goes back to the level of bureaucratic overlay that will be imposed on the California Citrus Mutual or the California Cotton Growers Association or the Carpet and Rug Institute or the pizza company from Ohio.

This is absolutely about how we as a Nation determine those policies that will, in fact, allow us to have the clean air we all want. But we can achieve those goals in a way that isn't going to kick our timing in the head. Who can do that? Is it the EPA, whose mission is solely and exclusively that we have to follow the letter of the law here? The letter of the law says to not only go after the big polluters but all the way down to the small emitters, which emit 250 tons of carbon per year. And every effort EPA may want to make in terms of tailoring, all it is going to take is one lawsuit that challenges that tailoring to inject the uncertainty back into the market, back into the business place. So once again we have an economy that just can not get back on its feet.

This is not a referendum on any other bill that is pending in Congress, but it is a check on EPA's regulatory ambition. It presents an opportunity for us to stop the worst option for regulating greenhouse gases from moving forward, while we work on a more responsible solution.

I want to take a moment to thank my colleague from West Virginia, who spoke very passionately about why he supports this resolution--because of the people he represents. I ask all of us to look to the people we represent. Look at your small businesses, your farmers, your ranchers, your pizza manufacturers. Look to them. Look to the health of their families and their communities.

I have a packet here that outlines the broad support for this resolution among the Alaska stakeholders. It is everything from our Alaska State Legislature to our Governor, our seafood processors, our small business refiners, those who are trying to get an Alaska gas line in place, our native corporations, the assembly from Anchorage, letters from local mayors. I am listening to what the people of Alaska are saying. They are making very clear that they want to ensure that when we develop climate policy, the ``we'' is ``we the people,'' we the elected Members of Congress, and not those unelected bureaucrats within an agency who will not only develop that policy but then in turn implement that policy. The Alaskans I am hearing from are saying: Make sure that as we as a State try to build our economy, we can do so in a manner that allows us time.

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