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McCain-Lieberman 2003
Dangerous congressional emissions on global warming.


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Today, the U.S. Senate will debate the “Climate Stewardship Act” (S. 139), introduced by Senators John McCain (R., Ariz.) and Joseph Lieberman (D., Conn.). This will be the first clear-cut debate on global-warming policy since the Senate passed the Byrd-Hagel resolution in July 1997 by a vote of 95-0. Byrd-Hagel preemptively rejected the Kyoto Protocol, the U.N. global-warming treaty, as too costly and unfair to the United States. McCain-Lieberman is a nose-under-the-tent strategy to align U.S. domestic policy with the Kyoto agenda of climate alarmism and energy rationing.

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McCain-Lieberman started out as a surrogate for the Kyoto treaty. As originally introduced, S. 139 would require covered entities to reduce emissions of greenhouse gases, mainly carbon dioxide (CO2) from energy use, to year 2000 levels in 2010 (Phase I) and 1990 levels in 2016 (Phase II). Though not as restrictive as the U.S. Kyoto target (7 percent below 1990 levels during 2008-2012), Phase II was stringent enough to put major U.S. companies in virtual compliance with Kyoto. Once forced to bear Kyoto-like burdens, such firms would have an incentive to lobby for ratification in order to participate fully in Kyoto’s emissions trading system.

However, this game plan turned out to be a little too clever. The bill bore an obvious resemblance to Kyoto, which remains in a bad odor on Capitol Hill. So, to mollify critics and entice fence sitters, Sens. McCain and Lieberman today will introduce an amendment to delete Phase II. However, the bill’s structural core will remain intact–and that is what makes it inherently dangerous to America’s economic future.

The revised version of S. 139 will still impose a cap on CO2 emissions. Carbon dioxide is the inescapable byproduct of the carbon-based fuels–coal, oil, and natural gas–that supply 86 percent of all the energy Americans use. U.S. energy consumption is expected to increase by 34 percent between 2001 and 2020, and carbon-based fuels are expected to supply about 90 percent of the increase. Enacting any variant of S. 139 would be tantamount to issuing a congressional declaration of war on the fuels that power the U.S. economy. Worse, it would establish the institutional framework for a succession of legislative, regulatory, and litigation assaults on carbon-based energy.

Enacting Phase I would fundamentally redefine the climate policy battle in Washington. Instead of debating whether to suppress carbon-based energy–the question that has occupied national policymakers to date–Congress would instead continually debate how much to suppress it.

The text of the bill leaves no doubt on this point. Section 336 of the original version (Section 334 of the October 16 “Staff Working Draft”) requires the Commerce Department–”no less frequently than biennially”–to reassess whether the bill’s emission caps remain adequate to “prevent dangerous anthropogenic interference with the climate system.” McCain-Lieberman would make Commerce a permanent lobbyist, within the executive branch, for new taxes or caps on carbon-based energy. If pro-energy, pro-consumer policymakers don’t defeat Phase I in 2003, they will have to battle Phases II, III, etc. in 2005, 2007, and beyond.

Twelve attorneys general, two cities, and fourteen green groups are already suing the Environmental Protection Agency because it refuses to regulate CO2 under the Clean Air Act (CAA), even though the CAA contains no subchapter, section, or even subsection on global climate change, and even though Congress specifically rejected regulatory climate policies when it last amended the Act in 1990. The CO2 lawsuits are frivolous, because they imply that Congress has already enacted the substance of Kyoto and McCain-Lieberman. But for that very reason, enacting McCain-Lieberman would rig the rules of the game in favor of anti-energy litigants. For the first time, U.S. law would classify CO2 as a regulated pollutant. The CO2 lawsuits would instantly gain legal (although not scientific) merit–and there would be no end of them.

Greenpeace, Natural Resources Defense Council, and other advocacy groups would likely sue the U.S. government “no less frequently than biennially,” each time decrying the existing McCain-Lieberman caps as inadequate to “prevent dangerous anthropogenic interference with the climate system.” Indeed, given the well-known fact that even Kyoto would have little effect on atmospheric CO2 concentrations, litigants could plausibly claim that nothing short of Phases IV, V, or VI would protect the environment with “an adequate margin of safety.”

It is little wonder then that anti-energy activists are gung ho for McCain-Lieberman, even though its regulatory strictures are weaker than the measures they would like to impose. Phase I is the legal foothold they need to make the U.S. regulatory system unsafe for the production and use of carbon-based energy.

So, when McCain and Lieberman ask their colleagues to support Phase I, they might as well say, “Don’t worry, we just want to put the camel’s nose under the tent–what possible harm could there be in that?” The correct answer is that, although S. 139 could do nothing to stop climate change, natural or manmade, it would establish institutions, legalize actions, and mobilize constituencies hostile to affordable energy and economic growth.

But pro-energy, pro-consumer lawmakers should take heart. With a modicum of clarity, discipline, and resolve, they not only can keep the camel’s snout out of the tent, they can also give the beast a bloody nose.

–Marlo Lewis is a senior fellow at the Competitive Enterprise Institute.



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