EPA Administrator Gina McCarthy assured attendees at the UN climate negotiations in Paris today that the EPA's greenhouse gas rules for power plants would stick and survive all political and legal challenges. She emphasized her point by repeating it.
After McCarthy's speech, she was joined for a question-and-answer session by Janet McCabe, EPA assistant administrator for air and radiation. The questions from the audience were not from reporters but rather from sycophantic supporters and beneficiaries of EPA's policies to raise electric rates. Nonetheless, two questions concerned how the rules would survive. McCarthy unfortunately did not answer how the forthcoming Paris climate treaty could lock the rules into place if it was not actually a treaty requiring Senate ratification and therefore lacked legal force.
An answer was provided by President Barack Obama in a press conference last Tuesday before he returned from Paris. The President said that the new climate agreement would bind the next president politically even if it had no legal force and even if the next president were a Republican who had campaigned against it and against the EPA's greenhouse gas rules:
"But even if somebody from a different party succeeded me, one of the things that you find when you're in this job, you think about it differently than when you're just running for the job. And what you realize is ... that American leadership involves not just playing to a narrow constituency back home, but you now are, in fact, at the center of what happens around the world, and that your credibility and America's ability to influence events depends on taking seriously what other countries care about. Now, the fact of the matter is there's a reason why you have the largest gathering of world leaders probably in human history here in Paris. Everybody else is taking climate change really seriously. They think it's a really big problem.... So whoever is the next president of the United States ... is going to need to think this is really important."
McCabe is a master of answering questions by saying nothing at great length, so it surprised me that she answered the question about how the EPA rules could survive. McCabe started by saying that it was an important question because people were asking about it. EPA had developed the rules through a lengthy process that respected all the administrative procedures and consequently had been made bulletproof against lawsuits. McCabe went on to say that the next President could not just undo the rule by fiat, but would have to undertake a similarly difficult and lengthy process.
McCarthy chimed in with basically the same answer. She explained that it's not an executive order but a rule built on a solid record and thus the law. She might have added, but did not, that her point's relevance depends on the next president having more respect for the rule of law than does the president she serves.
McCarthy then claimed, quite incredibly, that President Obama had changed the debate over climate policy and that the American people were now engaged. She then had to backtrack and admit that the Congress was not with the program. She said yes there have been votes in Congress, but there will also be vetoes.
Polls continue to show that the American people rate global warming last on their list of concerns and have not been engaged by President Obama's climate agenda. The votes in Congress McCarthy referred to are votes in the Senate and House this fall to block the EPA's rules for new and existing power plants. The president will indeed almost certainly veto both resolutions of disapproval under the Congressional Review Act, but the inconvenient fact is that majorities in the Senate and House oppose the rules.
Past presidents have often tried to ignore congressional opposition by generating support from the people, but Obama has gone one step further: he has claimed public support that exists only in his fantasies.
Replying to another question, Administrator McCarthy disputed that she ignored or had contempt for Congress. "I'm very respectful of Congress." This should have provoked widespread guffaws in the audience, but there were only a few titters. Just as well because McCarthy continued that she was going to ignore Congress because she knew what needed to be done.
Acting Assistant Administrator McCabe's comment that she knows people are asking how the EPA rules will survive is a revealing admission of what is going on at COP-21 (which is short for the twenty-first Conference of the Parties to the UN Framework Convention on Climate Change). Negotiators from other countries have been made aware that the Congress has voted to block the rules and that 27 States have filed suit in federal court to overturn the rules. These negotiators are naturally asking what will happen after Obama leaves office in January 2017.
This is a critical question because the EPA's rules make up the biggest part of the reductions in greenhouse gas emissions that the President has pledged as the U. S. contribution to the forthcoming Paris climate treaty. The U.S. pledge is to lower greenhouse gas emissions by 26 to 28 percent below 2005 levels by 2030.
I have to give the administration credit for the snow job they are trying to do here in Paris. McCarthy and McCabe were followed by a panel of three utility executives who offered their enthusiastic support for the EPA's power plant rules. PG&E, Berkshire Hathaway Energy, and Calpine just love to be regulated!
On Dec. 5 at COP-21, the Edison Electric Institute (EEI), the trade association of investor-owned utilities, also announced their support for the rules. It is worth remembering that EEI in 2009 endorsed the Waxman-Markey cap-and-trade bill. When cap-and-tax died in the Senate and Republicans won a House majority in the 2010 elections, President Obama announced that he would go ahead without Congress to fulfill his campaign promise to make electricity rates "necessarily skyrocket."
The EPA rules are the result, and the EPA has told the states that the best way to meet the mandated reductions in greenhouse gas emissions is by creating a cap-and-trade program with other states.