On March 9, Bill Sloan authored “The Endangerment Finding Reversal: The Next Phase of Federal Climate Policy” in the Recorder. The following is an excerpt.
The federal regulation of greenhouse gas emissions under the Clean Air Act was always an imperfect solution, dating back to at least 2009. When President Barack Obama won his first term, Democrats held a majority in both the House and the Senate, but not a filibuster-proof majority in the Senate. At the time, there was a high degree of international activity surrounding cap-and-trade regulation of greenhouse gases resulting from the nearly global participation in the Kyoto Protocol to the United Nations Framework Convention on Climate Change. To address greenhouse gases in the United States, the major proposal out of the Democrat-held Congress was the American Clean Energy and Security Act of 2009 (the ACES Act), which was commonly referred to as the Waxman-Markey bill after its sponsors. The bill was extraordinarily complex and reflected a sea change in how economic activity might be regulated, not for purposes of prosperity or protection, but instead for purposes of achieving greenhouse gas reductions. With the national economy still rebounding from the financial system crisis in 2008, and with filibusters commonly being exercised to shoot down bills with simple majority support, the timing of the Waxman-Markey bill was politically problematic, notwithstanding Democrat control of the House, the Senate, and the White House.
Additionally, more and more problems with the administration of cap-and-trade internationally were surfacing—there were questions about the integrity of carbon offset projects, concerns about a system that did not cap developing countries (such as China) with massive emission profiles, and debates about how individual countries were implementing their national programs to meet their international commitments. A high-profile example of these problems was Canada’s withdrawal from the Kyoto Protocol, when the country determined it could not meet its emission targets and was facing billions of dollars in penalties and offset purchase obligations.
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