Posted on May 15, 2019 by Dick Stoll
For anyone serious about climate policy, I highly recommend Bob Sussman’s Comment in the May 2019 Environmental Law Reporter. Sussman, a former high-ranking EPA official in the Clinton and Obama Administrations, has produced an amazingly comprehensive review of where we have been and where – in his view – we should be going with climate policy and law in the U.S.
He recommends a detailed mix of legislative and regulatory proposals covering all sectors of the economy. His proposals are based (necessarily) on the assumption that Democrats will control both the White House and Congress beginning in 2021. If this happens, he says, the Democrats “will need to be ready with a fully developed and actionable climate policy agenda . . . building this agenda will take time and must begin now.”
So is Sussman – like many Democratic Presidential candidates – endorsing the Green New Deal (GND)? Hardly! His baseline is to seek “economically responsible and realistic” measures. And when he says “realistic,” he means politically as well as technically.
Sussman criticizes the GND as a “wild card” formulated by “idealistic newcomers” who could “unwittingly torpedo their own efforts.” He urges those formulating new proposals to account seriously for concerns about (1) economic disruption, (2) an expansive federal bureaucracy, (3) picking winners and losers among energy technologies, and (4) the U.S. competitive position internationally. Democrats, he writes, “need to acknowledge these political realities.”
These are concerns and realities, of course, that the GND essentially flaunts. He warns that the GND “will polarize the electorate and alienate the political center,” which would lead to “yet another policymaking failure that allows GHG emissions and global temperatures to continue to rise unchecked.”
Sussman’s detailed proposals are summarized neatly in Table I to his Comment. He is realistic in dividing proposals that will need new legislation as opposed to beefed up regulations. For instance, he is careful to note that cap-and-trade or “beyond the fenceline” approaches would need new legislation. In this regard, he recognizes that anything like the ambitious Obama Clean Power Plan would be unlikely to survive judicial review given the current composition of the Supreme Court.
For the power and manufacturing sectors, he endorses legislation providing an integrated cap-and-trade system. I have one caution in this regard. I would hope that such legislation would not look very much like the Waxman-Markey bill that passed the House in June, 2009 (and was never brought to the floor of the Senate).
As I wrote in a piece for BNA that year, the House bill contained short deadlines for dozens of new EPA regulations – deadlines that could never have been responsibly met. This would have set up an inevitable round of citizens suits forcing new deadlines coupled with massive judicial review opportunities. All this in turn would produce tons of work for lawyers accompanied by very few tons of emission reductions. Hopefully any new cap and trade legislation can be sufficiently specific on programmatic elements and numeric details so the program could get off the ground without suffering through years of judicial process.