(Bloomberg) — President Barack Obama hadn’t even made it
home from climate talks in Paris when Republicans in Congress
voted to kill the regulations backing his carbon-cutting pledge.
Obama’s foes want to undercut any climate accord from the
United Nations summit in Paris, along with his credibility on
the issue. But just as with the Republicans’ failed attempts to
kill Obamacare, the efforts are likely to run aground over
constitutional and legal constraints.
Even a Republican successor in the White House would have a
hard time overturning whatever commitments are made in coming
days or the U.S. power plant rules that underlie Obama’s pledge
and were targeted by Tuesday’s resolutions, now facing an
almost-certain veto.
“The Republicans might get some political talking points by
saying this, but realistically, there’s no way they are going to
repeal these rules if the courts uphold them,” said Brian Potts,
a Foley & Lardner LLP attorney specializing in Clean Air Act
cases.
The White House has pushed an approach in Paris that
ensures any final deal won’t hinge on a ratification vote in the
Senate. Unlike other international accords, it would not be
subject to the chamber’s “advice and consent.” Individual
countries’ carbon-cutting commitments are not expected to be
legally binding, and in the U.S., Obama is relying mostly on
executive branch regulations to fulfill a promise to pare
emissions at least 26 percent below 2005 levels over the next
decade.
Power Plan
That includes the Environmental Protection Agency’s Clean
Power Plan to throttle carbon dioxide emissions from the power
sector, effectively blocking construction of new coal-fired
power plants.
But Obama still needs Congress to go along with his promise
to deliver $3 billion into a United Nations fund to help
developing countries adapt to rising seas and other impacts of
climate change. And scores of lawmakers have told the president
they won’t pay the bill.
“Congress ultimately holds the power of the purse,”
according to a letter to Obama last month from 37 U.S. senators,
including Republicans John Barrasso of Wyoming and Jim Inhofe of
Oklahoma. “Congress will not allow U.S. taxpayer dollars to go
to the Green Climate Fund until the forthcoming international
climate agreement is submitted to the Senate for its
constitutional advice and consent.”
Joined by Senators Joe Manchin, a Democrat from coal-rich
West Virginia and Roy Blunt, a Republican from Missouri, Inhofe
is also pushing a resolution insisting that any climate
agreement shall have no force in the U.S. — and no money spent
to support it — unless the pact has been submitted to the
Senate for a vote.
The Obama administration has asked Congress to deliver the
first $500 million of the climate aid already. Appropriators are
negotiating an omnibus spending bill for fiscal 2016 that may
reject the request.
Congressional Weapon
The climate finance pushback is the most powerful weapon
Congress has to undercut a deal, said Steven Groves, a
specialist on treaties who is a fellow at the Heritage
Foundation, a Washington research group that favors small
government.
“The deal here in Paris completely hinges on whether
developing countries get the assurances that the money will be
coming,” Groves said.
Obama struck a confident tone before leaving France on
Tuesday, saying the U.S. will deliver the funding over time.
“This is not just one slug of funding that happens in one
year,” he said at a news conference. “This is multiyear
commitments that, in many cases, are already embedded in a whole
range of programs that we have around the world. And my
expectation is that we will absolutely be able to meet our
commitments.”
Obama’s opponents are trying to stoke skepticism in France,
where representatives from 196 countries are attending a
conference outside the capital scheduled to run through Dec. 11.
Republican congressional staff are joining conservatives there
in a bid to convince international negotiators that U.S.
financial commitments are on shaky ground back home.
French Perspective
There are signs the strategy isn’t working. Laurent Fabius,
the French foreign minister who is presiding over the climate
talks in Paris, said he discussed the U.S. politics of the issue
with Obama over dinner earlier this week. The House vote to
nullify EPA power rules “wasn’t a great surprise,” Fabius told
reporters at a briefing Wednesday. “We know the position that
the Congress has — or at least the position of many of the
Republicans in Congress.”
Fabius noted recent opinion polling that shows both
Democrats and Republicans in the U.S. are “becoming aware of how
serious the issue is.”
Senate Majority Leader Mitch McConnell, a Republican from
Kentucky, has warned that Obama’s promises in Paris “would rest
on a house of cards of his own making,” in an opinion piece in
the Washington Post Nov. 27. Even if Obama’s signature
environmental regulation — the Clean Power Plan — survives
court challenges from 27 states and a phalanx of other groups,
“the next president could tear it up,” McConnell wrote.
The threat, echoed by Inhofe in a white paper issued
Tuesday and by Republicans on the campaign trail, isn’t
realistic, regulatory specialists say.
“There is an effort by Congress to throw water on what
President Obama is doing, but at the 30,000-foot level, none of
what Congress can do or is doing is going to derail anything
going on over there,” said Rob Barnett, a senior energy policy
analyst with Bloomberg Intelligence. “It’s harder to roll back
regulations than some people would like to imagine.”
Absent a court ruling against the EPA rules, he said, “you
really have to go in and modify the Clean Air Act, and I think
there is very little appetite for doing that.”
State Compliance
States also may be well on their way to complying with the
Clean Power Plan by the time court challenges to the regulation
are resolved. Lawyers following the matter expect the
regulation’s fate ultimately will rest with the Supreme Court.
In rolling out the carbon dioxide emission limits for new
power plants and the Clean Power Plan for existing facilities,
the EPA cast the measures as essential to safeguard public
health and the environment.
Even a future administration is somewhat bound by that
justification, said Potts, the lawyer specializing in the Clean
Air Act.
“If EPA comes out with a big rule and says this is
necessary to protect public health and air quality,” he said,
“it’s really hard for the next administration to do a 180”
without running afoul of a law blocking agencies from “arbitrary
and capricious” actions.
Most of the Republicans seeking to replace Obama in next
year’s election are vowing to reverse an environmental agenda
they say would harm the U.S. economy. New York real estate mogul
Donald Trump and Senator Ted Cruz of Texas question whether
there’s even a problem.
“There is no way any reasonable person can conclude that
the most immediate threat we face to our security is what the
climate is going to look like in 25 or 30 years,” Florida
Senator Marco Rubio said at a town hall in New Hampshire.
Jeb Bush, who touts his record of land conservation and
watershed restoration as a former Florida governor, says the
climate is changing and humans may be contributing to it. But
he’s also wary of EPA regulations that may slow economic growth
and has vowed to stop Obama’s carbon dioxide emissions rules.
Bush told reporters in Waterloo, Iowa on Monday that he was
“uncertain” he would have even attended the summit in Paris.
The opening for the next president comes if courts rule
against the EPA power rules, which would put Obama’s successor
in control of determining the response.
“If it does get remanded back to the EPA — which I’d say
is at least a coin flip odds — the president gets the way in,”
Barnett, with Bloomberg Intelligence, said. “If it’s a Democrat,
they probably re-propose something very similar. If it’s a
Republican, I don’t think they can walk away from the issue.
They can’t just say ’we won’t do anything,’ but they’ll drag
their feet and do something maybe more friendly to industry.”
To contact the reporter on this story:
Jennifer A. Dlouhy in Washington at jdlouhy1@bloomberg.net
To contact the editors responsible for this story:
Jon Morgan at jmorgan97@bloomberg.net
Elizabeth Wasserman