The Climate Change Agenda in the Obama Years

Tendencies in a historical perspective

When looking at what Congress has done during the Obama years, we notice a dramatic increase of the introduction of legislation directly or indirectly linked to climate change issues. This outbreak of climate change bills started when the Democrats won the majority in both the House of Representatives and the Senate in 2007 for the 110th Congress (2007-2008). As of July 2008, the number of bills, resolutions, and amendments specifically dealing with global climate change and greenhouse gas (GHG) emissions that lawmakers bas introduced was over 235, more than double the 106 submitted by the previous Congress. With the clear intent of this new Democratic Congress being to place climate change at the top of the congressional agenda, there were high hopes for climate legislation to be passed. Despite the breadth and variety of subjects the bills of the 110th and 111th Congresses addressed, the two major acts as well as other minor bills with climate and energy legislative proposals failed. The Lieberman-Warner Climate Security Act (S. 2191) of 2007 and The American Clean Energy and Security Act (H.R. 2454) of 2009 respectively aimed to reduce GHG emissions and would have launched an ambitious cap-and-trade mechanism. They both passed through the House of Representatives but not through the Senate, where a majority of Republicans, some Democrats with local interests in specific industries like coal and agriculture, conservative Blue Dog Democrats and some freshmen in Republican-leaning seats killed them either on the floor – in 2007 – or even before any debate – in 2009, in spite of the important committee work.

In the 112th Congress, after the Republicans took back the House of Representatives (the Senate remained in the hands of the Democrats) and President Obama was reelected, less than half as many climate-related bills were introduced (113 to 263 and 235 in the previous ones, respectively the 111th and 110th Congresses). This reduction was furthered by a questioning of the importance and relevance of environment protection and the fight against climate change. Indeed, almost half of these bills (55 total) aimed to block or hinder climate action – 40 of which would have prohibited or hindered regulation of GHG emissions, especially by preventing the Environment Protection Agency (EPA) from regulating under the Clean Air Act of 1963 (EPA was established on December 2, 1970, Bush l’a assoupli). Almost as in the two previous Congresses, none of the bills – either supporting or blocking climate action – passed, but one. On the last day before the election, the Senate actually passed the American Energy Manufacturing Technical Corrections Act (H.R 6582) in December 2012, which was signed into law by the president on December 18. This bill contains measures that have established best practices for « smart » electric meters in the federal government, set federal energy management and data collection standards, and eased regulatory burdens to have a single definition for all covered water heaters, whereas there used to be separate ones. Rep. Henry Waxman (D-CA), who introduced The American Clean Energy and Security Act of 2009, called for more legislation in the new Congress. Following this, the 113th Congress introduced almost twice as many climate-specific bills than in the 112th Congress, and more bills (62% to 52% in the previous Congress).

The Clean Power Plan: Passing the Republican Congress minefield

The Clean Power Plan (CPP) is Obama’s capstone project on climate change. It was introduced by the Environmental Protection Agency (EPA) on August 3rd, 2015 and its target is for each state to reduce carbon emissions by 32% before 2030 based on 2005 levels. Moreover, the Clean Power Plan also aims to establish the United States’ commitments for the 21st Conference of the Parties that will be held in Paris from November 30th to December 11th, 2015. That said, the CPP has been the subject of systematic opposition by a Republican Congress that disagrees with the federal climate change measures approved by Obama. Some states have already asked for extensions on meeting their objectives, opposition has been clear-cut in the media and from the industrial sector, and despite a number of int’l organizations like the World Wide Fund supporting the CCP, there has been serious Republican pushback since its publication in the Federal Register this October.”Any federal legislation made by governmental agencies can be reviewed by Congress according to the Congressional Review Act (CRA), which appears to be the primary tool of the majority. Nevertheless, outside the CRA, opponents of the Clean Power Plan could use appropriation amendments or standalone legislation. Opponents are mainly Republicans, but some Democrats have also opposed the CPP, like Heidi Heitkamp (D – ND). The opponents of the CPP are led by Mitch McConnell and their strategy is divided into two parts: first taking symbolic measures to show their opposition before the COP21, and then taking long-term actions to oppose it. Mitch McConnell, Republican Senator of Kentucky who became the majority leader at the beginning of this year, is leading the opposition against the CPP. On October 27th, he introduced a resolution against based on the CRA. Congress needs a majority in both chambers to vote a joint resolution of disapproval, two were voted on the 1st of December 2015, one led by Sen. Shelley Moore Capito (R-W.Va.) which aimed to revoke the CPP and the other initiated by Mitch McConnell (R-KY) to prevent regulation on new power plants. It was voted at the House of Representatives on December 1st of 2015 with 242 votes for and 180 against on the first vote and 235 for and 188 against on the second vote. Both joint resolutions of disapproval are symbolic because Obama promised he will overturn them by presidential veto. Opponents do not have two thirds of the votes to override the checks and balances system, but several candidates of the 2016 presidential elections have announced that they will cancel CPP it if they get elected. This congressional opposition therefore shows how strongly the Republicans opposed the carbon regulations before the climate negotiations in Paris even started. Congress could also use its own rules to undermine the CPP; the power of the purse could be invoked. In that situation a presidential veto would be much harder because according to the Paygo rule, the president would have to cut funding somewhere else. Nevertheless, it would not take down the CPP definitely, it would only delay it. During this additional time, opponents could examine the CPP to find judiciary opposition and use the Ratepayer Protection Act which aims to allow delays for Congress to look at judicial aspects of the rules before they are submitted. This bill has passed the House of Representatives but not the Senate yet.


Definition of fracking : The injection of fluid into shale beds at high pressure in order to free up petroleum resources.

The oil and gas extraction could be economically profitable in terms of creating jobs and allowing the country to become less depended on foreign oil extracts especially from the Middle East and its unstable political climate. However, the chemicals used to extract the oil have been known to be damaging to the environment and create long term problems.

Some states have tried to set a legal frame to fracking techniques, while some have tried to favour entreprises practising it. The federal government fracking standards only apply to lands owned by American Indian tribes and leased federal lands, which represents nearly a quarter of oil producted in the US.

Barack Obama – like the EPA – has emphasized the need of extracting natural gas, but without polluting water reserves. While keeping going further in the way of deregulation [?], legislation can’t guarantee the latter goal.

For example loophole on the 2005 Energy Policy act exempts gas drilling industrials to disclose the chemicals involved in hydraulic fracturing. Thus, United-States has become the first country where environmental rights has gone backwards.

Since hydraulic fracturation is exempted of the federal permit imposed by the 1974 Safe Drinking Water Act, the only [pratique] that is still regulated is the massive injection of diesel fuel as a fracturation fluid. However, the Congress estimates that 32 millions of liters of diesel fuel has been illegally injected in 19 different states between 2005 and 2009, which is considered as extremely risky for water supplying. Solid and liquid waste, as well as contaminated liquids, should be reported to the EPA, but oil and gas companies use industrial secret as an excuse not to do so.

It has been estimated by the Center for Responsive Politics that in 2014, oil and gas lobby has spent more than $100M. Conflicts of interest between politics and oil and gas industrials can also occur, like has highlighted the Halliburton-Cheney affair during Iraq occupation. A quick study of the lobbyist spendings show that they are way more directed towards the Republican party than the Democrat one.

Despite the overwhelming amount of studies showing that the earth is warming, some Republicans (like Donald Trump, Rick Santorum, Ted Cruz, Mike Huckabee…) express doubts or even don’t believe in global warming, making it pass for a political opinion instead of a scientific proof. Another part feels a little bit concerned about that, but do not want to change economic policies just because of scientific conclusions ; Republican candidate Carly Fiorina thus declared : “Companies shouldn’t cave in to the demands of climate change scientists”. Most of the Republicans tried to move the topic for it to become a politic one instead of a scientific one, and they openly put the economic interest before the environmental one.

For a lot of Democrats, global warming is a reality more than a theory. However, the few attempts they make to push environmental subjects are quite shy, and environment is generally not the main subject. From 2010 to 2013, at least five american states have adopted laws limiting of forbidding fracking on their territories. These law goals were not climate protection, but the risk-management concerning populations. The example of hydraulic fracturing seems to show that environmental issues tend to be treated only if they raise direct and visible problems concerning public health.

Un article d’Arnaud GONZALEZ, Lucile De TRAVERSAY et Axel BOISSARD


Holland and Knight LLP (Mexican and American law firm) report

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