Legal Commentary

Trading Carbon for Mercury

By Jonathan H. Adler

Politico is reporting on Majority Leader Harry Reid?s efforts to corral enough votes for a Senate climate bill.  Reid says that ?cap-and-trade? is not in his vocabulary, but the whole plan is to enact something that can be conferenced with the House bill (?Waxman-Markey?) and enacted in a post-election lame duck session.  The problem is that it?s difficult to find 60 votes for a bill that imposes limits on carbon.

The latest gambit, according to Politico, is to propose a utilities-only cap-and-trade plan (a plan that looks something like what then-candidate Bush proposed in 2000).  While many utilities like the idea of carbon cap-and-trade ? indeed, some utilities helped write key provisions of the House bill ? they don?t like being singled out.  In return for their support, utilities are apparently demanding relief from other regulatory programs, including limits on emissions of mercury and sulfur dioxide.  EPA has been clamping down on these emissions, and some utilities see the opportunity to make a deal.

Trading carbon caps for relief from mercury and sulfur dioxide regulations would be a ?disaster? according to TNR?s Bradford Plumer.  He?s not exaggerating by much.  Some of the regulatory measures from which utilities would obtain relief have actual near-to-medium-term public health consequences.  A single-industry cap-and-trade proposal does not, nor will it have any meaningful effect on atmospheric greenhouse gas concentrations, let alone projected warming.  The more comprehensive bill that passed the House will not do much of anything to regulate the planet?s thermostat, even if one makes the implausible assumption that it will deliver on its promised emission reductions, but a single-sector bill would do even less.  (More on Waxman-Markey here and here.) Scaling back existing rules for traditional pollutants could well have a meaningful impact on ambient concentrations and exposures. Even if some of these rules are overly rigid and burdensome, they do reduce emissions, and the utilities appear to be asking for direct relief, not reforms to make existing rules more flexible, cost-effective, or efficient.

Full post as published by The Volokh Conspiracy on July 18, 2010 (boomark / email).