RENEWED DISCUSSION OF CAP AND TRADE BILL IN WASHINGTON

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5 june 2013

Looking back to cap-and-trade debate revives animosities and stirs new options

Richard E. Cohen, special to E&E, E&E News Wednesday, June 5, 2013

Second in a two-part series on lessons learned from the 2009 "American Clean Energy and Security Act." Click here to read the first part.

The failed attempt to pass climate legislation at the start of the Obama administration has fueled a renewed conflict over what went wrong, which offers useful insight -- and potential implications -- for what lies ahead. The retrospective, in particular, could bolster the president's promise to pursue sweeping regulatory action to circumvent the continuing congressional deadlock.

At issue are the terms of the climate bill that the Democratic-controlled House narrowly passed four years ago this month, plus the Democrats' subsequent failure to move a companion measure to the Senate floor while they had a 60-vote majority and apparent momentum early in the Obama presidency.

In a 142-page analysis published early this year that has generated extensive controversy among pro-environment interest groups -- but scant public discussion -- Harvard University government and sociology professor Theda Skocpol criticized the decision by the Environmental Defense Fund (EDF) and other relatively centrist environmental groups to join forces early in the debate with major corporations, such as Duke Energy Corp., DuPont Co., General Electric Co. and Alcoa Inc. That coalition, some of whose members dropped out prior to the legislative conclusion, was the U.S. Climate Action Partnership (USCAP).

This "insider bargaining" was "inherently asymmetrical" with advantages to the business groups, Skocpol wrote. "It all has a very distanced, antiseptic quality to it, as powerful and very economically secure people look down on the American multitudes with a kind of bemused amazement," she added. She also criticized Senate Democrats for seeking bipartisanship with Republicans, whom she termed increasingly "extreme" on climate issues amid the rise of the tea party movement, and for their failure to use Senate rules to pass the bill with a 51-vote majority.

Those political relationships and legislative strategies remain a source of division among environmental groups. Some have sought to continue consensus-building policy. Others have become increasingly confrontational, especially their vocal protests and police arrests in opposition to the Keystone XL pipeline. And still others, such as the Sierra Club, believe that both approaches are essential and compatible.

"Finding common ground among environmentalists is important," said John Coequyt, who manages international climate issues for the Sierra Club. "That was harder on energy issues. But it's easier now that the focus is on climate impacts such as extreme weather and how to change that." He added that there also has been a shift in that direction among members of Congress, including Republicans, following the devastation of Superstorm Sandy last October.

The environmental groups' divisions on the earlier climate bill were spotlighted in Skocpol's paper and a companion 93-page narrative of the failed legislative campaign that was written by Petra Bartosiewicz and Marissa Miley, who are recent graduates of the Columbia University School of Journalism.

Those reports, financed by the Rockefeller Family Fund, were the focus of a February symposium at Harvard that was co-sponsored by the journalism school and the Scholars Strategy Network. That academic group, of which Skocpol is the director, describes itself as "progressive-minded citizens [who] spell out the democratic and policy implications of their research."

The academic reviews then became the centerpiece of an April article in The New Yorker, which was written by Nicholas Lemann, who is stepping down this year as dean of Columbia Journalism School. Lemann had commissioned the two papers.

Not surprisingly, he embraced their critique of the legislative failure and concluded that environmentalists need to rejuvenate their political movement. "The science of carbon emissions is there. The politics is not," he wrote.

But central findings of the two papers have been largely dismissed by many key advocates of the legislation. They cite other factors for its failure, including President Obama's greater attention to health care legislation, the weak economy and intense opposition from the energy industry.

"USCAP wasn't designed to be the only horse pulling the climate cart," according to Eric Pooley, a veteran journalist who wrote "The Climate War," a 2010 book that was a narrative of the showdown over climate legislation. "Yes, we needed more horses. But Skocpol's response is, in effect, to shoot the horse that pulled hardest."

Pooley, whose book provided detailed and mostly sympathetic treatment of the insider method taken by the centrist environmental groups, subsequently became senior vice president for strategy and communications of EDF. His reaction to the papers was posted by Grist, a Seattle-based website that reports on the environment.

Jonathan Lash, who was president of the World Resources Institute during the legislative battle and an active participant in USCAP, also disagreed with the premise of the two papers. In addition to the strong opposition of the coal and oil industries plus "the anti-environmental Right," he wrote in an email, supporters of the legislation were forced to contend with the opposition's greater enthusiasm at "the height of the Tea Party Era." Lash last year became president of Hampshire College in Massachusetts.

Waxman confidant defends deal-making

Allies of Rep. Henry Waxman (D-Calif.) took issue with the papers, especially their criticism of his deal-making to secure House passage of the legislation. As chairman of the House Energy and Commerce Committee at the time, he was the chief sponsor of the measure with Rep. Ed Markey (D-Mass.). "The writers never contacted us for comment. That's surprising, given the central role of Rep. Waxman," said Phil Barnett, the committee's Democratic staff director and a longtime Waxman aide.

The Bartosiewicz-Miley paper is full of major errors about the Waxman-Markey bill, added a senior House Democratic aide. "Their understanding of the legislation is superficial at best," the aide said. "The Skocpol paper contrasts the failure of climate legislation with the success of health reform, but there were agreements reached with affected industries in both efforts."

Although the Sierra Club was not part of the coalition, Coequyt added that Skocpol "oversimplifies the legislation by pretending that USCAP was driving the issue. ... Henry Waxman and [then-Speaker] Nancy Pelosi wrote the bill and got it across the finish line, not USCAP." The House passed the bill, 219-212.

Despite their strong criticisms, environmental advocates have embraced some of Skocpol's recommendations -- especially the need for a more inclusive citizens movement, plus her criticism of Republican stridency.

"We need to do a better job of engaging the grass roots," Coequyt added. "We don't see how the result would have been different" with the climate bill. "But the papers have helped us to rethink what happened, as we focus on the regulatory and legislative fights ahead."

The pro-environment advocates have helped to shift the focus to regulatory action, especially by U.S. EPA. They do not entirely agree on the scope of such a plan and how it would be complemented by subsequent legislation. But they have bowed to the reality of a Republican-controlled House, plus solid bipartisan majorities in both chambers in favor of the Keystone XL pipeline. And they have mostly applauded Obama's State of the Union message that "If Congress won't act soon to protect future generations, I will," by directing his Cabinet to develop executive actions.

The president and other top officials have not described the scope of such regulations. At the very least, they would be expected to include limits on carbon emissions from power plants -- both new and existing facilities. Within days of the July 2010 official end of the Senate legislative exercise, Pooley wrote that the climate war would be continued, above all, by EPA, especially on "stationary sources of CO2 -- power plants and large factories."

Waxman, who has organized a "Safe Climate Caucus" of House Democrats, has urged a more comprehensive regulatory regime. "The Clean Air Act gives the administration broad authority to reduce greenhouse gas emissions," said his chief aide Barnett. "EPA does not need new legislation to address emissions from power plants, oil refineries and many other sources, including sources of short-lived climate pollutants like methane."

But the scenario for EPA action has been complicated by uncertainty over the Senate's handling of the nomination of Gina McCarthy to head the agency and the expectation of a Republican filibuster when the battle reaches the Senate floor. Majority Leader Harry Reid (D-Nev.) has said that debate likely will be delayed until July. The Senate Environment and Public Works Committee approved the nomination May 16 on a party-line vote.

With McCarthy and her allies moving cautiously on the nomination to avoid ruffling Republicans, the administration appears even more circumspect not to give the GOP further ammunition. "The White House may be trying to get its team in place, especially at EPA, before announcing specific regulatory initiatives," said a veteran congressional Democratic aide familiar with the issues.

But an additional wrinkle that may bolster the regulatory option is that McCarthy could retain her position as the agency's air chief, even if her nomination is not approved. In that case, Bob Perciasepe -- who had been deputy administrator in the first Obama term -- could remain in place as acting administrator.

"I assume that Senate Republicans want to hold up EPA. ... That is totally despicable, but it won't succeed," Coequyt said. "Perciasepe and McCarthy are very competent and they can do their job, in any case."

Many questions remain, including whether the White House and senior EPA officials are preparing for various regulatory scenarios, how Republicans and other opponents would respond with what almost certainly would become court challenges, and possible timelines. A congressional Democratic ally said that the administration's plans remain "opaque."

Both sides in the Senate so far have maintained a thin veneer of civility. Led by Environment and Public Works ranking member David Vitter (La.), Republicans have challenged McCarthy and her EPA allies chiefly for their procedural approach as regulators rather than attack the substance of their actions.

But the looming showdown suggests that environmentalists and their allies across government are positioned to pursue the kind of confrontation on climate policy that Obama sought to avoid in his first term. That, in turn, could revive the ideological clashes of the 2010 campaign and provide new tests for environmentalists and their tea party adversaries.


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