Betting Blind on ACES
The House is all-in on Waxman-Markey, a bill it never had a chance to read.


Jonathan H. Adler

A key provision of the final compromise transfers authority over “offsets” from the Environmental Protection Agency to the Department of Agriculture. Farm-state interests demanded this change in the hope that USDA will adopt a more flexible approach to offset compliance and turn a blind eye to the indirect environmental consequences of some offset projects. Another provision could force the imposition of tariffs on foreign products from nations that do not impose sufficiently stringent climate controls of their own. Yet another could overturn an EPA ruling adverse to ethanol and biofuel interests.

When Waxman-Markey finally hit the floor, there was no actual bill. Not one single copy of the full legislation that would, hours later, be subject to a final vote was available to members of the House. The text made available to some members of Congress still had “placeholders” — blank provisions to be filled in by subsequent language — including one for the regulation of climate derivatives. The last-minute amendments, too, had yet to be incorporated. Even the House Clerk’s office lacked a complete copy of the legislation, and was forced to place a copy of the 1,200-page draft side by side with the 300-page amendments.

Even if members had had the opportunity to read the draft bill and the last-minute amendments, they would still have been in the dark about much of the bill. The last-minute amendments consist largely of line-by-line revisions and insertions that are simply incomprehensible on their own. Here’s a sample (from page 5):

Page 32, line 6, strike “When,” and insert “Except as otherwise provided in paragraph (2), when”.

Page 43, line 10, after “supplier” insert “, or a central procurement State that, pursuant to subsection (g), has assumed responsibility for compliance with the requirements of subsection (b),”.

Page 43, line 21, before the comma insert “and paragraph (4)”.

Page 44, line 5 strike “(4)” and insert “(5) and with paragraph (4) where applicable”. . . . 

And so on. This is the sort of stuff that would take even experienced legislative staff more than a few hours to comprehend. There’s simply no way most members of Congress have any idea what these last-minute revisions did.

Climate-change policy is incredibly important. Even those who support federal action on climate change (as I do) should be distressed about the process and product that emerged from the House last week. The “debate” over the bill was a farce — a mockery of representative government — and the bill itself is riddled with sweetheart deals for special interests and regulatory measures that will impose costs for minimal benefit.

In the end, the Waxman-Markey bill garnered 219 votes, significantly fewer than the Democrats’ total 256-vote majority caucus (and the bill picked up eight Republicans). One hopes that at least some of the 44 Democrats who voted against the bill were uncomfortable endorsing legislation they did not have time to read, let alone digest. Senate Democrats will not have this excuse. When it’s their turn to take up climate legislation, they’ll have to focus on what the bill actually says. If the Senate is to endorse climate cap-and-trade, we can hope that the glare of sunlight will prevent it from approving an equally monstrous bill.

NRO Contributing Editor Jonathan H. Adler is Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law.