Senate Committee on Environment and Public Works Committee Road to Paris: Examining the President’s International Climate Agenda and Implications for Domestic Environmental Policy

The U.S. Senate and Environment and Public Works (EPW) Committee held a hearing to examine President Barack Obama’s plans for the U.S. to meet the recently submitted pledge to reduce emissions by 26-28 percent in the Intended Nationally Determined Contribution (INDC) to the United Nations Framework on Climate Change Conference (UNFCCC).

 

Sen. James M. Inhofe (R-OK), the committee chairman, conducted the hearing among the following panelists, with their associated viewpoints:

• Karl Hausker, Senior Fellow of the Global Climate Program at the World Resources Institute (WRI), stated Congress should support the President’s INDC statements, the goals are ambitious but achievable, and they can be done under existing regulations. In the long term, Hausker hopes Congress will put a price on carbon.
• Sarah O. Ladislaw, Director and Senior Fellow at the Center for Strategic and International Studies (CSIS), testified it is essential for U.S. actions to be in line with the international economy.
• Jeff Holmstead, partner at Bracewell & Giuliani, argued the President’s goals in INDC are unrealistic and unattainable. “The disparity comes down to mere arithmetic and the numbers simply do not add up.”
• David Bookbinder, partner at Element VI Consulting claimed the agriculture industry will soon be targeted by the administration to regulate emissions and close the gap to reach the emission reduction target.
• Professor Jeremy Rabkin, Professor of Law at George Mason University, said a Senate resolution should be pursued in advance of the Paris Conference on climate change.

 

Major Outcomes:

• Subcommittee members requested a response by July 22 from President Obama to their request for a detailed response for how the U.S. will meet 26-28 percent reduction in emissions by 2025.
• The letter was signed by Sen. Inhofe, Sen. John Barrasso (R-WY), Sen. David Vitter (R-LA), Sen. Roger Wicker (R-MS), Sen. Jeff Sessions (R-AL), Sen. Shelly Moore Capito (R-WV), Sen. Dan Sullivan (R-AK), Sen. John Boozman (R-AR), Sen. Mike Rounds (R-SD), Sen. Roy Blunt (R-MO), and Sen. Mike Crapo (R-ID).

 

• Sullivan (R-AK) said the Environmental Protection Agency (EPA), from a legal perspective, is a rogue agency because it keeps violating the law. He submitted a Wall Street Journal article, “Stopping EPA Uber Alles,” for the record.

 

In his opening statement, Sen. Inhofe criticized the lack of authenticity, substance and merit in the President’s international climate agenda. He said the President is going out of his way to write the U.S. Senate and American people out of final agreements, and this hearing was called to take a closer look at the President’s agenda and what it means domestically for the nation. Sen. Inhofe said President Obama’s INDC statements are unrealistic, do not add up, and fall 33 percent short of meeting greenhouse gas reduction targets.

 

A large portion of the INDC depends on successful implementation of the Clean Power Plan, which Sen. Inhofe said would increase the price of electricity, depress local economies, send domestic jobs overseas, and cost $478 billion. The United Nations Climate Change Conference (COP21) in Paris this November will be like all the other international climate summits where delegates “eat well, drink well, but nothing ever happens,” he said.

 

In her opening statement, Sen. Barbara Boxer (D-CA), the ranking member, said the Obama Administration has taken serious steps to address the growing climate change crisis by reducing carbon pollution. The Clean Air Act has been successful for decades, and carbon pollution is covered in the act. Furthermore, the new fuel economy and carbon standards for vehicles has resulted in the rebirth of the Detroit auto industry.

 

She added the emission targets could save lives that would be lost to poor air quality, extreme heat and temperature changes, and more than 8 million acres of wildfires.

 

Hausker testified the U.S. can meet the administration’s reduction targets. He said economic growth can go hand in hand with efforts to reduce emissions, but the right policy needs to be in place to unlock both environmental and economic benefits. Net economic benefits can result from increased efficiency.

 

Hausker supported an economy-wide carbon tax, with the associated air benefits estimated by EPA at $25-62 billion annually. The carbon tax negative would only be a decrease of one-tenth of a percent in the gross domestic product.

 

In representing herself and not CSIS, Ladislaw testified the actions being taken or pledged by the U.S. are in line with other major economies that establish stretch goals is a part of the international negotiation process, and the U.S. and other countries will need to take more action in the long term.

 

She said President Obama is using a global framework to lead by example on climate change. Acting alone amongst the international community would only hurt U.S. economic competitiveness, she added.

 

Although U.S. emissions are relatively straightforward to measure, determining if the U.S. is acting in line with global trends is more difficult. Comparable national actions are not always easy to see.

 

Holmstead testified the administration refused to explain how it will fulfill its commitment to reduce U.S. greenhouse gas emissions. He is puzzled by the President making promises on which he has not followed through.

 

To back up this statement, Holmstead referenced publically available reports from Element IV Consulting and the World Resources Institute that document the gaps in the administration’s commitments.

 

Holmstead said the agriculture industry is the largest sector with no current emissions regulations, and the administration will target it next in order to meet its goals.

 

Climate change is a legacy issue for the President and the administration hasn’t engaged Congress or stakeholders on the difficult issues that are involved, he said. The plans would be politically unpopular, which prevents a thorough examination of the complex regulatory aspects.

 

Given what is known now, he said, the administration likely does not have a plan to address the 26 percent gap in emissions reductions. The Clean Power Plan (CPP) will play a central role in accounting for emissions reductions, but given the history of the Clean Air Act, CPP either won’t be implemented or can’t be implemented on the schedule proposed by the administration.

 

Holmstead contrasted the current administration’s approach on climate change legislation with the approach of the administration of President George H.W. Bush. In 1989, President Bush called for a fundamental overhaul of the Clean Air Act, leading to the passage of the 1990 Clean Air Act Amendments, the last major environmental legislation to be adopted by Congress. As Holmstead witnessed, the bill was ultimately supported by a wide range of industry and environmental groups and significant majorities of both congressional Republicans and Democrats.

 

While this was not the ideal legislation, they were instructive, showing what an administration can do even when the House and Senate are controlled by opposing parties.

 

“It is a shame the Obama administration has not made this type of effort when it comes to climate change legislation and has instead pursued an ill-advised and almost certainly illegal regulatory approach,” Holmstead said. The approach “has created uncertainty for everyone and will not achieve the emissions reductions that the Obama administration has promised to the international community.”

 

Bookbinder began his testimony by acknowledging that climate change solutions will affect every aspect of the economy and they can be best addressed by tailor made legislation. He recommended that “custom-made federal climate legislation—preferably in the form of a carbon tax—would be the most useful thing Congress could do to make an effective agreement possible.”

 

Power plant emissions standards are enormously optimistic, he said, and EPA has no proposed standards for existing landfills, making the reductions from the eventual regulations very hard to calculate.

 

Bookbinder said the INDC measures will not meet the 26 percent goal, which only describes the category of emissions and not the details.

 

Citing EPA and Department of Energy (DOE) figures to calculate the maximum emissions reductions expected from the INDC measures, Bookbinder estimated the U.S. will fall at least 29 percent short of the 2025 goal.

 

He said that target was based on emissions reductions attributable to regulatory measures other than the ones listed in the INDC, and that he has been requesting the administration to share the results of its planning process.

 

Rabkin testified the President cannot respond to climate change with only individual actions and must have a two-thirds Senate majority to ratify a new treaty, which is what stopped U.S. approval of the Kyoto Treaty during the Clinton and Bush administrations.

 

In response, the Obama administration has suggested it will endorse the results of the scheduled COP21 as a set of commitments, requiring no action by Congress. Through his executive authority, the President can embrace the remaining treaty elements as a political commitment, and impose moral or strategic goals on the Congress to implement in the future.

 

Rabkin said this goes beyond extending a small number of specialized or exceptional precedents, and establishes a new precedent that fundamentally changes the way the largest and most complex international agreements are made.

 

In the past, Presidential authority to make agreements with foreign nations had no legal effects within the U.S. and usually had no practical effects. Most of these instances were “relatively contained, one-time matters, resolving a particular dispute with an immediate, simultaneous set of transactions,” he said.

 

“As commander in chief, the President may have certain inherent powers to deploy armed forces to protect Americans or discrete American interests abroad,” he added. “If the President has the inherent powers to commit to vast new environmental policies, he must be supposed to have some inherent constitutional authority to protect the Earth’s climate.”

 

For all international agreements to implement global warming reductions, Rabkin said, the President made legally binding arrangements by drawing on existing legislation that required the implementation of already authorized measures. In 2007, the U.S. Supreme Court clarified that treaties do not directly affect U.S. laws unless the treaty or Senate ratification instrument states that it should.

 

“When it comes to climate change accords, all variables argue in favor of some congressional participation before the U.S. is committed, even if the commitment is called merely ‘political,’” Rabkin said.

 

The implementation of the Paris Protocol will be monitored by highly formal, regularly scheduled public conferences of the nations subscribing to this agreement, along with participation by various international administrative organizations. This protocol will deal with major aspects of energy production and transportation within the U.S., engaging some of the most intrusive regulatory programs at home.

 

Rabkin claimed this end-run around a formal treaty may pose serious risks, pushing international policies away from traditional constitutional safeguards and political limits. It could be seen as a general precedent for how the U.S. coordinates its law with international standards in an era of global governance. With no distinctions between categories of international commitment, the President could potentially circumvent existing practices for other pressing global concerns.

 

Rabkin stated it is fair to question why trade agreements can be approved by legislative-executive agreements with simple majorities in each house while human rights, arms control and environmental treaties require Senate two-thirds majority approval. Rabkin supported the pursuit of a Senate resolution in advance of COP21.

 

Questions

 

Referring to his testimony, Sen. Inhofe asked Holmstead about agriculture bearing the bulk of the burden to address the emissions gap and how that will negatively impact rural, agriculture-producing states. 

 

Holmstead responded that agriculture voluntary programs have been implemented in some areas. The private sector is serious about addressing conventional tillage methods and restricting nitrogen fertilizer. These gradual moves by the private sector will provide the emissions reductions to fill the INDC gap.

 

Sen. Boxer said 94 percent of all treaties are accomplished through the executive branch. Many of Rapkin’s comments made no sense, she added, and Congress had authorized the 1992 United Nations Framework Convention on Climate Change. She said the Clean Air Act has been supported by Congress and upheld by the Supreme Court, which said greenhouse gas emissions are relevant to the act.

 

Rapkin replied that most of the executive treaties are extremely narrow and technical, and that is not the case with the ambitious INDC statements.

 

Addressing Bookbinder, Sen. Boxer said she agreed that specific legislation—such as a carbon tax or cap and trade agreements—is required to address climate change. But she asked him about his statement that the Clean Air Act has the authority to get the job done even without legislation.

 

Bookbinder answered that it depends on what is meant by the job. There’s no doubt the Clean Air Act will reduce emissions, but it is simply not as efficient.

 

Sen. Boxer asked Hausker if his analysis indicated that an emissions reduction of 26-28 percent by 2025 is achievable. He responded he places heavy emphasis on achievability, and he disagrees with Bookbinder’s characterization in the WRI report that indicates a 30 percent gap in emissions reductions.

 

Hausker disagreed with Sen. Boxer’s comment that congressional ratification of the 1992 UN Framework Convention on Climate Change authorized the executive branch to take action related to climate change. Otherwise, he said, President Bill Clinton would have ratified the Kyoto Protocol, and Vice President Al Gore would have had more authority to take action.

 

Boxer commended Bookbinder on advocating for a carbon tax, and noted that his coworker, a former Exxon Mobile employee, agrees with him on this. She highlighted this as newsworthy progress.

 

Sen. Sessions suggested if the President commits to something that isn’t approved by Congress and isn’t supported by the public, then Congress still has the power of appropriation to restrain the President’s promises to the international community.

 

When no panelist objected to Sen. Jeff Merkley’s (D-OR) assertion that climate change is real, something the U.S. should address, and that fossil fuels and human activity contribute to climate change, Sen. Merkley reminded the committee not to lose perspective on this issue.

 

Sen. Merkley said climate change has affected Oregon by increasing timing and intensity of the fire season and diminishing the Cascade Mountains snowpack, resulting in warmer streams. Oregon’s rural communities care a lot about fishing, which is not as good when the streams are small and warm compared to when they are cold and deep, he said. Oregon’s forests and farms are also experiencing a massive drought. Thus the current impact on rural America is massive, and manifested in farming, fishing, and forestry.

 

“Climate change is having a direct impact right now, and we don’t need to look 50 years into the future to see that,” he added.

 

Sen. Merkley said having an international conversation is important because the pollution of the air and seas is a tragedy of the commons. China, India, and Brazil offer examples of nations working together to take on the challenge. Furthermore, the U.S. has often been at the forefront of bringing the world together.

 

Sen. Merkley asked Hausker about the interactions between policy and companies, and asked why companies such as Starbucks are calling for climate action when supposedly that would harm the economy.

 

Hausker answered that more companies are indeed calling for national and international action, and are taking internal action as well.

 

He used Exxon as an example of a corporation that recognizes the importance of climate change, and has adopted an internal price on carbon to guide its investments.

 

“Boards that are committed to profit see that climate change can be enormously harmful to our future economy,” Sen. Merkley said.

 

Sen. Dan Sullivan (R-AK) said the significance of local actions needs to be recognized. He said Alaska has the cleanest air among the states, and that is because of local actions, not federal actions.

 

Sen. Sullivan said Alaskans are concerned about federal overreach when agencies take regulatory action without statutory or constitutional authority. Sen. Sullivan declared EPA is considered Alaska’s poster child for federal overreach, and is a “rogue agency” that consistently violates the law.

 

He entered a Wall Street Journal article about the EPA into the committee record, showing that even when the Supreme Court strikes down EPA it “just keeps powering through,” ignoring the law.

 

Sen. Sullivan asked the panelists if they agreed, from a legal perspective, that the EPA is a rogue agency. Rabkin and Holmstead agreed that EPA often exceeds its statutory authority, as evident with the Clean Water Act. Bookbinder said that although he has fought the EPA in court, he does not believe it is a rogue agency.

 

Sen. Ben Cardin (D-MD) said that a price on carbon is a sensible bridge between the Republicans and Democrats that will energize the private sector.

 

Sen. Sheldon Whitehouse (D-RI) advocated for a carbon tax bill. He asked the panelists if they believed climate change is man-made and emissions contribute to it, and they all agreed.

 

He said large American corporations that depend on agriculture for their products are urging the agriculture sector to support emissions regulations.

 

Bookbinder said Congress wrote the Clean Air Act to give EPA the authority to regulate pollutants that are anticipated to endanger human health and welfare. As a result, Congress has already put a price on carbon through the law’s regulatory costs. But he said a carbon tax is more economically efficient than using the Clean Air Act.

 

In a closing statement, Sen. Boxer said agriculture is California’s largest industry in terms of revenue, and through 2050, regulating emissions will save the country $11 billion in damages. She disagrees that the EPA is a rogue agency.

 

Sen. Inhofe said the hearing was not a science meeting, but 63 percent of meteorologists believe current climate variation is natural. He referenced Richard Lindzen, an atmospheric physicist who said, “If you regulate carbon, you regulate life.”

 

Sen. Inhofe said that on a list of 25 national concerns, Americans voted climate change dead last. The regulations that are being discussed would cost each family in Oklahoma $3,000 per year. Even the EPA Administrator said a cap and trade system wouldn’t help the global problem because China generates most of the world’s polluted emissions.