Senator Murkowski’s Bipartisan Disapproval Resolution

The Disapproval Resolution

Senator Murkowski recently introduced a bipartisan “resolution of disapproval” (S.J. Res. 26) that would prevent the Environmental Protection Agency (EPA) from using the Clean Air Act to impose backdoor climate regulations.

The Senator’s resolution was filed in accordance with the Congressional Review Act of 1996, which provides Congress with an opportunity to veto what it deems to be ill-considered rules and regulations developed by federal agencies.

Senator Murkowski’s resolution has drawn strong support – much more than any climate bill introduced in this Congress.  It is co-sponsored by 41 of her colleagues, including 3 Democratic Senators: Blanche Lincoln (AR), Ben Nelson (NB), and Mary Landrieu (LA).

The resolution has been referred to the relevant Senate committee of jurisdiction and, in the absence of action there, can be sent directly to the Senate floor with the support of 30 senators.  Once on the floor, it is a privileged motion that can move expeditiously and is not subject to amendment or filibuster.  A simple majority is required for passage.
General Background

The EPA finalized its “endangerment finding” for six greenhouse gases in December 2009.  Many describe that finding as an affirmation of the science of global climate change, but in reality, it’s much more.  Under the guise of protecting the environment, the finding itself triggers an unprecedented expansion of EPA regulation that will, by bureaucratic fiat, destroy jobs and subject Americans to expensive, complicated as well as burdensome permitting processes that they’ve never encountered before. 

While the EPA set out to regulate only mobile sources (tailpipe emissions from motor vehicles), the overlapping triggers within the Clean Air Act will immediately extend the agency’s regulatory reach to stationary sources as well – giving it blanket authority to regulate all greenhouse gas emissions.

Nationwide, the EPA has estimated that some six million buildings, facilities, farms, landfills, and other establishments will face greater regulation.  These emitters would be subject to an inflexible regulatory process that requires new permits to be acquired and, in many cases, “best available control technologies” to be purchased, installed, and operated despite the fact that such technologies are not commercially available if they exist at all.  State air quality administrators have already expressed concerns on the burdens placed upon them by this EPA regulatory juggernaut.  Simply stated, millions of American business would now be required to obtain GHG permits and tens of thousands would need additional permitting before moving forward with any construction or modification projects.  This would effectively halt domestic business growth and expansion – through project cancellation and thus cost jobs -- just as the nation begins to emerge from this devastating recession.

Why the Resolution is Necessary

Because Congress never intended the Clean Air Act to apply to greenhouse gas emissions, it is one of the costliest and least effective tools available to achieve that purpose. 

Environmental groups, senior congressional Democrats, and administration officials (including the Administrator of the EPA and the President) have all expressed their preference for congressional legislation instead of bureaucratic regulation. 

It’s clear, however, that Congress needs more time to develop a responsible policy that protects both the economy and the environment.  More than a dozen Democratic senators have already expressed doubt about the Senate’s ability to pass climate legislation in the near future, or their outright opposition to the proposals that have been introduced so far. 

Because the Senate will not pass bad legislation to just to stave off bad regulations, it appears all but certain that the EPA will regulate greenhouse gas emissions before Congress acts.  Senator Murkowski’s resolution will prevent that from happening by halting the EPA regulatory process, rightfully return this debate to Congress, and ensure our nation’s climate policies reflect the views and best interests of all Americans.

Why “The Tailoring Rule” is Insufficient

The EPA is seeking to raise the Clean Air Act’s threshold for greenhouse gases to 25,000 tons per year – a hundredfold increase from the statute’s current triggers.  As a federal agency, however, the EPA has no authority to make an arbitrary change to the plain language of the law.  The “tailoring rule” will be challenged in court and, most legal observers believe, successfully so. 


Even if the tailoring rule somehow survives litigation, it will still fail to provide the protection that the EPA claims.  Due to state and local requirements – which require legislative amendment to change – the tailoring rule would not shield smaller emitters in some 37 states. 

If states choose not to amend their laws, their smaller emitters will never be shielded from these regulations.  And even if they do act, the protection will be temporary – the EPA has also made clear that smaller sources will face regulation within a matter of years.

Regarding large emitters, those exceeding 25,000 tons per year, the scope of those entities caught up in this bureaucratic nightmare include (according to the California Air Resource Board) universities, dairies, food processing and packaging plants, pharmaceutical factories, and breweries in addition to refineries.

Addressing Criticisms

The attacks made by environmental groups are nothing more than red herrings intended to distract from the substantive debate over whether the EPA’s regulations would be good or bad for America. 

The bipartisan disapproval resolution has nothing to do with the science of global climate change; it will not prevent the Senate from considering climate legislation; and it will not impact, in any way, the current air quality controls and standards within the Clean Air Act.