One of the little appreciated facts about federal climate change and greenhouse gas regulation is that the U.S. Supreme Court in its Massachusetts v. EPAdecisions opened the door to regulation of greenhouse gases under the exiting federal Clean Air Act. In response to that decisions, the US EPA issued a notice of advanced rule making that argued, in part, that the current Clean Air Act is not a good legal structure for such regulation.
While most parties would agree with that, it still provides a mechanism for a new administration to move forward with climate change and greenhouse gas regulation without any new legislation. In fact, Jason Grumet, a top advisor to Senator Barack Obama, has announced that a new Obama administration would move forward under the existing Clean Air Act. Mr. Grumet stated that if Obama were elected, he would give Congress 18 months to pass new legislation. If no legislation were enacted, then an Obama administration would move forward with developing rules to implement a greenhouse gas regulatory system.
Keep in mind that Congress has already passed a law requiring EPA to propose rules to implement a greenhouse gas reporting system by last month. The Bush administration has not moved forward with those regulations even though EPA staff have reportedly already prepared the draft rules.
Thus, the results of the election may provide a greenhouse gas regulatory system even without Congressional action. We will know the outcome of the election in a matter of two weeks. Then the pressure may be on Congress to decide how to proceed with climate change legislation. To what extent the economic and financial crisis will lead to greater efforts to block such legislation remains to be seen.