Floor Speech: Murkowski Offers Amendment on EPA Regulation of Carbon Dioxide

"Mr. President, I believe it is truly unfortunate that we are not allowed to consider this amendment. The amendment I was hoping to be able to bring up and consider is one that would prohibit the use of funds that has the effect of making carbon dioxide a pollutant subject to regulation under the Clean Air Act for any source other than a mobile source.

"It is unfortunate that the majority will not allow us to consider this amendment. The problem it seeks to address is significant. I don't believe it is going to go away if we choose to ignore it. As disappointed as I am, this amendment has clearly received considerable attention, so I wish to take this time this afternoon to fully explain its intent, my efforts to ensure its bipartisan nature, as well as the reasons I believe it is so incredibly important for the Senate to be given an opportunity to vote in favor of its adoption, if not now, then at some other point.

"In writing this amendment over this past week, I have listened to the concerns of many of my colleagues and the concerns of the environmental community, as well as the concerns expressed by the administration. My colleagues don't have to take my word for this. Look at the text of the amendment and see how it reflects--I think it so reflects--very seriously the comments and the criticisms from those who have weighed in. All I ask, at this time, is that for the next few minutes, my colleagues and my critics return the favor and listen to what I have to say.

"For context, let's start back at the beginning. Back in April of 2007, the Supreme Court declared, in the case of Massachusetts v. EPA, that carbon dioxide is a pollutant that can be regulated under the Clean Air Act. The Court held that the EPA must regulate emissions from mobile sources--meaning vehicles--if the Agency determined that carbon dioxide posed a threat to public health and welfare.

"In the wake of that decision, EPA began to lay the groundwork for Federal regulation of greenhouse gas emissions. Through its proposed ''endangerment finding,'' the Agency has sought to confirm that greenhouse gas emissions are, indeed, a threat to the public health and welfare. That proposal is now under review and most expect that it will be finalized in the very near future.

"The EPA has also released its draft rule to regulate mobile source emissions as required by the Supreme Court, and this will be accomplished through a dual standard that includes increased vehicle fuel economy and reduced tailpipe emissions.

"I am not putting the brakes on that proposal, despite some assertions to the contrary, but I am deeply concerned about the reach it may ultimately have. Under the ''Prevention of Significant Deterioration'' provisions within the Clean Air Act, anything found to be a pollutant under one section will be subject to regulation under all other sections of the statute.

"So what exactly does this mean in plain English? The EPA's decision to regulate carbon dioxide legally covers not only mobile sources but also stationary sources. We tend to think of power plants when we think of stationary sources, but also we think of office buildings, hospitals, schools, and apartment buildings. If you follow along those lines, you get the right idea. Very clearly, stationary sources must reduce emissions in order to bring our Nation to its climate goals, but forcing them to do so through the Clean Air Act would be one of the least efficient and most damaging ways to pursue that goal. It would be rife with unintended consequences and, I believe, potentially devastating for our economy.

"Under the Clean Air Act, any stationary source that emits more than 250 tons of pollutants each year is subject to regulation. Unlike other pollutants, pretty much every form of economic activity generates some level of carbon dioxide emissions. So these add up relatively quickly. In fact, the U.S. Chamber of Commerce has looked at this very closely. They believe that more than 1.2 million buildings that have never before been regulated under the Clean Air Act would come under this regulation if Congress does not intervene and if EPA moves forward.

"The 250-ton threshold would encompass more than just our major emitters. Caught in the same net would be dry cleaners, restaurants, the local Barnes & Noble bookstore. Realistically, we are probably talking about any facility that is heated or cooled by conventional means that is more than 65,000 square feet in size.

"I think there are some very grave concerns about the path the EPA would lead us down. I think they are apparent. I think others are seeing this as well and are expressing their concerns. Just this week, I received letters from over 11 different agricultural groups, including the American Farm Bureau Federation. I have received letters from the American Council of Engineering Companies; NFIB, the National Federation of Independent Businesses; the National Association of Manufacturers and the U.S. Chamber of Commerce.

"I ask unanimous consent that the letters from these organizations be printed in the Record.

"To its credit, the EPA realized that regulations at the 250-ton level are simply not feasible. So to try and resolve this issue, the Agency is apparently considering what they are calling a tailoring proposal. This would lift the Clean Air Act's regulatory threshold to 25,000 tons. That is a hundredfold increase.

"I shared the Agency's concern about a 250-ton carbon dioxide limit, but this 250-ton proposal moving up to a 25,000-ton proposal, this tailoring issue, is simply not going to hold. It has no legal basis. I think we expect it would be swiftly rejected by the courts. The EPA cannot constitutionally legislate a major change in the Clean Air Act. Ultimately, once this has all played out, the Agency's carbon dioxide regulations would remain in effect, but the threshold would be triggered at a level 100 times lower than the Agency had planned.

"That brings us to the tremendous consequences we can expect as a result. There is widespread agreement that the regulation of carbon dioxide emissions under the Clean Air Act would be absolutely unworkable and, at the same time, economically devastating. In the words of a long-term Democrat over in the House, it will create a ''glorious mess.''

"Another observed it could result in ''one of the largest and most bureaucratic nightmares that the U.S. economy and Americans have ever seen.''

"Just this week, the editors of the Washington Post argued that the Clean Air Act is ''breathtakingly unsuited to the great task of battling global warming.'' The Wall Street Journal's editors cast it as ''reckless endangerment.'' They went on to assert that the regulation would be like putting ''a gun to the head of Congress'' to ''play cap and trade roulette with the U.S. economy.''

"That may sound over the top, but even some members of the environmental community have agreed with the metaphor, as one clean air advocate affirmed this by saying this regulation is ''the legal equivalent of a .44 magnum.''

"This regulation is a train that could wreck our fragile economy. It is our own creation, and it is barreling toward us at full speed. I recently saw an ironic motivational poster that said: ''Government--if you think the problems we create are bad, wait until you see our solutions.'' It is fair to say that this issue, the regulation of carbon dioxide under the Clean Air Act, is one of the many examples of why that poster was created and, sadly, it occasionally rings true.

"Today, however, the Senate can choose another course for the debate over energy and climate policy. The Clean Air Act is one of our worst options to regulate carbon dioxide emissions, but it is not our only option for that cause.

"Those of us in Congress can and should step up and pass workable, intellectually honest climate legislation--whether it is a system of cap and trade, a carbon tax, or something else that removes the Clean Air Act from the equation. Nearly every participant in this debate, from elected officials to businesses and the environmental community, has stated their preference for legislation over regulation.

"That is where my amendment comes in. For exactly 1 year, it would limit the EPA's ability to regulate carbon dioxide emissions to just the mobile sources that were the subject of the 2007 Massachusetts v. EPA lawsuit. This is nothing more than a temporary timeout that will give us the breathing room in an already heated debate. It will give us the time we need to develop a sensible, effective policy that achieves the same result at a much lower cost.

"Anyone who takes the time to read my amendment will see I have gone to great lengths here to ensure it does not lead to any unintended or adverse consequences. It has been drafted and redrafted to limit one action by the EPA for 1 year, and nothing else. I have been responsive to bipartisan requests, even from Members who I knew would not be able to support this amendment, because I am committed to avoiding any overreach.

"So the result we have is an amendment that will not interfere or conflict with any other regulation or action that EPA is obliged to complete. That goes for the preparatory work for the regulation of carbon dioxide emissions. It holds true for the rule to expand the renewable fuel standard, for construction permits, and for regulations to foster the development of clean coal technologies.

"My amendment will not in any way impact EPA's authority relating to the reporting of greenhouse gas emissions, its ability to develop a voluntary carbon offset program, to issue permits for energy infrastructure on or near Federal land, permit carbon sequestration projects, or to move forward with very important work of both exploring for and producing the vast reserves of domestic energy on our Outer Continental Shelf.

"All of these concerns have been raised over the past several days, before this amendment was even introduced. All of these concerns are explicitly addressed within it. Some of our Nation's leading Clean Air Act attorneys--among the best and brightest legal minds--have assisted us in its preparation. They agree it will do exactly as it says, and that leaves very little ground for the claims that have been made against it.

"Given how devastating the EPA's regulation of carbon dioxide emissions could be, many casual viewers are probably left wondering why, exactly, my amendment has drawn such fierce opposition. Well, again, let me be clear. As much as anything else, the regulation of carbon dioxide under the Clean Air Act is being used as a thinly veiled threat to force the Senate to act on climate legislation, regardless of where we are in what remains an ongoing and incredibly important debate.

"The possibility that our worst option to reduce emissions will move forward, despite its consequences, is supposed to somehow compel us to move faster. We are expected to push through a climate bill, perhaps regardless of its content, in order to stave off this regulation. If the House debate is any indication of how our own will proceed, we will be asked to rush to judgment, cut off debate on one of the greatest challenges of our time, and to pass a bill--any bill--that purports to reduce emissions.

"In my mind, this situation has created a false dilemma, a proverbial Morton's Fork on Capitol Hill--meaning between a rock and a hard place. Right now, those of us in the Senate are clearly left with two bad choices--the EPA's endangerment regulation or the House's energy and climate bill--neither of which will end well for the American people. Making matters worse, we are told there isn't enough time to consider our options and develop a more viable path forward.

"By voting ''yes'' on my amendment, we could easily change this unfortunate dynamic. But we will not halt or hinder progress on climate legislation, as some have suggested. Not one of the climate bills that has been introduced so far would take effect until 2012--2 full years after the limitation imposed by my amendment would expire.

"If my amendment were to be accepted, the EPA will continue its work to regulate emissions from mobile sources. The agency and its employees will go about their business exactly as normal. They can even continue developing regulations for carbon dioxide emissions from stationary sources. For the next year, they simply cannot put those regulations into effect. One year after this bill is signed into law, that limitation would expire, and the EPA would have every authority to proceed if Congress has still not acted.

"For those who have expressed concern that my amendment would become a long-term fixture in appropriations legislation, be assured that I will work with you to ensure that the climate debate not only proceeds but reaches a conclusion in the form of a responsible bill that a majority of us can support. As an elected representative of the State that has been hit hardest by climate change, I will work in good faith with all who want to address climate change in an effective way, while protecting our fragile economy from further harm.

"To those who have claimed I am trying to put the brakes on climate legislation, I simply remind you of my long-standing support for renewable, nuclear, and alternative energies as part of the solution. There is a right way and there is a wrong way to moving forward in addressing climate change. EPA regulation of greenhouse gas emissions is simply the wrong way. We must reduce emissions, but it is unacceptable to do so at any cost and by any means. While Congress has not yet developed a workable bill, I will continue to work as hard as I can to make sure that, in fact, we do.

"Unlike many Members of the Senate, I have also cosponsored cap-and-trade legislation. I cosponsored the Low Carbon Economy Act that was offered last Congress by Senator Bingaman and Senator Specter. This year, recognizing that our work is far from finished, Senator Bingaman and I worked together, very cooperatively and collaboratively, on another comprehensive measure--the American Clean Energy Leadership Act. We reported that bill from the Energy Committee more than 3 months ago. It would significantly reduce greenhouse gas emissions, without causing economic harm, and yet it is still waiting to be heard on the Senate floor.

"The 23 members of the Energy Committee produced a bipartisan energy bill in the first 6 months of Congress. I have every reason to believe that the full Senate can, over a time period twice as long, develop an effective climate policy that will further reduce greenhouse emissions, without disrupting our economy. But that will require us to base our decisions more than on vote counts and special requests. It will require us to set aside politics and focus on substance. It will force us to cross the aisle instead of closing ranks, and it will mean acting on behalf of the American people, in their best interests, rather than our own or our party's.

"With regard to my amendment, the majority has again objected to calling it up. They have done everything they can to prevent a vote from occurring on the amendment, culminating in the objection that we not even have debate on the matter today. I want my colleagues to know, however, that this issue will not go away. Neither will my commitment to seeing it addressed head-on in a responsible and, if at all possible, bipartisan way.

"I ask unanimous consent that Senators Barrasso, Johanns, and Chambliss be added as cosponsors to my amendment.

"With that, I yield the floor."

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