The energy bill saga is nearing it's conclusion, but the battle over greenhouse gas emissions and preemption is just heating up, as the headline in this morning's Christian Science Monitor aptly sums up. And if the last couple of days are any indicator, things will remain at quite a high pitch for some time to come.
Now that the Senate has finally passed a weakened energy bill, with the House's agreement to raise fleet-wide CAFE standards to 35 MPG by 2020 preserved, President Bush has signaled he'll sign the bill even though it lacks language limiting the authority of the EPA and states like California over auto emissions. Basically, the White House backed down-- for now- and Senator Carl Levin (D-MI) failed at last-ditch legislative efforts to do the auto industry's bidding.
Levin did get something, however-- a "colloquoy" in the congressional record in which Levin, bill co-author Sen. Dianne Feinstein (D-CA), and Senate Commerce Committee Chairman Daniel Inouye (D-HI) state their agreement that the bill's standards won't be "undercut" by any future EPA auto emissions standards. Press reports indicate that Levin threatened to vote against moving the bill forward if he didn't at least get this concession, which industry lawyers could (desperately, in our opinion) attempt to use in future legal and regulatory proceedings.
The legal effect of the colloquy, even on its own, is ultimately minimal. And even as Levin tried to assert NHTSA's supremacy (and thus contradict both the Supreme Court and Wednesday's ruling in California), he did pay lip service to Mass v. EPA. Still, it was puzzling that Senator Feinstein, after vigorously defending her state's authority, would agree to something that even slightly muddies the legal waters and provides California's lawyers with an extra headache.
Her office certainly heard similar complaints, and as Clean Air Watch reports, Feinstein and Inouye later inserted an additional colloquy into the record. Their agreement clarifies that the bill maintains co-equal status between EPA and NHTSA, fully preserves EPA's authority to protect human health and the environment, and in no way preempts California.
California's waiver application-- which, if granted would have a stronger and more rapid impact than the current bill or anything that EPA will likely promulgate in the coming weeks-- remains the critical point of inflection. The state's lawyers are not optimistic, and are preparing an expedited lawsuit against EPA, though we have to admit being perplexed as to what grounds for denial they're preparing to counter. Senator Levin's now-corrected colloquy aside, EPA really wouldn't have much ground to stand on.
Not that the lack of solid grounds stopped this adminstration in the past, as we saw highlighted by the recent revelation that, among other efforts, the White House deliberately suppressed science in formulating the weak EPA legal position that was rejected in Mass v. EPA.
It's also important to note that the issues of agency jurisdiction and preemption aren't dead ones in this Congress. Rep. John Dingell (D-MI) has already pledged that his House Energy and Commerce Committee will revisit and press the issue in the future. Senator Inouye indicated to Feinstein that his committee will also monitor devlopments, but with more of a seeming focus on holding the administration accountable for its regulatory decisions in the coming weeks:
The DOT and the EPA have separate missions that should be executed fully and responsibly. I believe it is important that we ensure that the agencies are properly managed by the Executive Branch, as has been done with several agencies with shared jurisdiction for decades. I plan on holding hearings next session to examine this issue fully.
Between continued Congressional oversight, appeals of recently-decided cases, two key EPA rulings, and the potential for new litigation from both the states and industry (keep in mind that the White House's veto threat noted unless its demands were met, industry sources might take legal action) against EPA regulation), the next few months should be an exciting time. Stay tuned...