So What Exactly Is a Disapproval Resolution?

This post also appears on the National Journal Energy & Environment Experts Blog.

With Thursday’s floor statement by Senator Murkowski (R-Alaska) announcing her joint resolution to override EPA’s endangerment finding, we were introduced to a new term to add to our lexicon – a disapproval resolution.  If like me, you only had a vague recollection that Congress had given itself the ability to override any new federal regulation, some quick research was in order.

This authority is contained in the Congressional Review Act of 1996 (CRA) and was passed as one element of the Contract with America.  In the 13 years since enactment, it has been successfully used once.  The 2001 Congress overturned an end-of-term rule issued by OSHA under the Clinton administration that would have imposed ergonomic requirements in certain workplaces.  Two other resolutions have passed the Senate but not the House (in 2003, a FCC rule setting limits on broadcast media ownership and in 2005, a USDA rule setting minimum risk zones to protect against Mad Cow disease).  Since the CRA was enacted, something like 731 major rules and 47,540 non-major rules (as of March 31, 2008) have been finalized, but only the ergonomics rule was overturned.

And what is the endangerment finding?  After an exhaustive review of the science, EPA found what every other national and international assessment has concluded – that greenhouse gases contribute to global warming, and that global warming is harmful to public health and the environment.  That finding is, in fact, unassailable.  Any effort to reverse it will be read, both here and abroad, as Congress rejecting the fundamental science.

In introducing her proposal, Senator Murkowski said that her goal was to allow the Senate more time to complete its work on bi-partisan legislation and to take the worst of the options (EPA regulations) off the table.  But the dire economic consequences that are feared by some simply don’t reflect EPA’s actions to date and, in any event, wouldn’t occur in the near-term, leaving Congress adequate time to develop a bi-partisan comprehensive clean energy bill

EPA’s initial proposal sets efficiency standards for light duty vehicles.  It has been widely supported by the auto industry, unions, environmentalists, and states.  EPA’s next proposal, “the tailoring rule,” further demonstrates EPA’s commitment to taking a reasonable approach in using the Clean Air Act to control greenhouse gases.  It would limit permitting requirements and new source review (for new and modified sources) only to the largest sources, dramatically reducing the number of entities subject to these requirements.  A number of commenters have suggested ways to improve this proposal, for example, by delaying its implementation, and EPA must consider these comments before finalizing the rule. 

Senator Murkowski is correct to raise concerns that EPA’s approach will be challenged in the courts and could be overturned.  But any resolution in the courts will take time.  Disapproving the endangerment finding would not only be wrong as a matter of fact, it is also unnecessary, if the goal is to buy time for Congress to act.

Recognizing that Congress is best positioned to craft a cost-effective comprehensive clean energy bill doesn’t guarantee that it will happen any time soon.  At the same time, recognizing that the Clean Air Act isn’t ideally designed to control greenhouse gas emissions doesn’t mean that it can’t be used to positive effect.  We need to begin shifting to clean energy now.  It would be wrong to disarm EPA with no certainty of a legislative solution.

Congress would be better off spending its time and energy over the coming weeks doing the work necessary to bring about the bi-partisan agreement on a comprehensive clean energy bill that Senator Murkowski and many others have as their ultimate objective.

Steve Seidel is Vice President for Policy Analysis