In the News

Michael [Livermore], the executive director of the Institute for Policy Integrity at New York University School of Law has echoed this view, noting that a section of the Clean Air act authorizes the president “to enter international agreements… and to develop standards and regulations which protect the stratosphere.” He concluded: “This could provide a foundation for an executive agreement—and Obama wouldn’t need to round up 60 votes from the Senate.”

Does Mr. Obama really need 67 votes in the Senate to approve any climate treaty? Maybe not, says Michael Livermore in TNR’s The Vine—he may have executive authority.

No doubt, negotiators in Copenhagen will be up all night, trying to forge language that can bridge the large divides that still remain between key players. Getting to an agreement that can set up the next round of talks for success, without giving up too much bargaining power, is no doubt the first priority for all parties. But as we keep moving from discussions to the moral and value questions of responsibility for taking the next step, the negotiations will only continue to get harder.

President Obama will arrive in Copenhagen tomorrow to weigh in on the talks over a global climate treaty. But will he and his envoys be “hemmed in” by Congress, as John Kerry suggested on Thursday? After all, even if the United States does agree to an international climate treaty, many observers have argued that the treaty would still need 67 votes in the Senate for ratification. And, given how difficult it’s proving just to round up 60 votes for a climate bill, the odds of 67 look dim. So are there any other options available? Actually, yes.

How far will the EPA go in regulating these gases, including carbon dioxide from burning fossil fuels? In passing the Clean Air Act in 1972, congress gave the EPA broad discretion to follow the science. In a report this year, the Institute for Policy Integrity at the NYU School of Law found that the EPA can go very far, up to imposing a cap-and-trade system, like the one Congress is considering.

After that, there are also a couple of other options the EPA could pursue. It could, as Michael A. Livermore has argued, work with states to create a cap-and-trade system for greenhouse gases, which would, in theory, give polluters more flexibility to cut their emissions (rather than having every facility have to conform to the same rigid set of rules).

Sens. Cantwell (D-Wash.) and Collins (D-Ill.) have introduced a welcome addition to the debate over climate change legislation in the Senate. Their bill, with its strong architecture, and simple, fair, and transparent emissions reduction, can help restart the momentum to agree to climate change legislation early next year before the prospect of mid-term elections shuts down the legislative process.

Or the EPA could provide those market-based approaches itself. Michael Livermore at the NYU Law School notes over at TNR’s The Vine that the EPA has the authority to create its own cap-and-trade plan under the Clean Air Act. (Even under legislation, the EPA would have to run the thing anyway.)

International negotiators and pundits had been pinning their hopes for success in Copenhagen on the U.S. Congress—when it became clear that there’d be no bill this year, excitement flagged and the claws came out. But EPA’s greenhouse gas finding will most certainly help President Obama in his negotiations at the climate talks. The envoys from other nations should read the full meaning of this action: it is now officially the law of the land in America that greenhouse gases are a danger to public health.

Many U.S. businesses will likely see yesterday’s endangerment finding from the EPA as a call to the congressional negotiating table on a climate bill. That’s because the option for business-as-usual is now dead—given that greenhouse gases are now subject to the Clean Air Act, companies will have to reduce emissions one way or another.