Climate Change Regulation Before Legislation in U.S.

Sen. John Kerry's announcement on Nov. 16 that the Senate's version of climate change legislation, the Clean Energy & American Power Act (S. 1733), probably won't be considered until "early spring" 2010 now makes it more likely that the first move by the U.S. will come from the Environmental Protection Agency rather than Congress.

Sen. Kerry made the announcement after meeting with Senate Majority Leader Harry Reid and committee chairs. Its no secret that rounding up 60 votes to beat an expected filibuster is going to be difficult. Coal-state senators are wanting to make sure their constituencies aren't hurt by the bill. Sen. James Webb (D-VA) signaled his opposition to cap and trade, calling it "enormously complex," and joined with Sen. Lamar Alexander (D-TN) to propose a bill that would provide $20-billion to expand nuclear energy and fund alternative energy sources. Sen. Webb says his proposal addresses areas that are "achievable."

That leaves pretty much an open field for the EPA to issue its long-awaited endangerment finding, which the agency sent to the White House Office of Management and Budget on Nov. 9. OMB has up to 90 days to consider it, but the EPA is hoping for a shorter review. The endangerment finding, together with EPA's mandatory carbon reporting rules, means that, for now, the climate action is on the regulatory side rather than legislative.