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Will The EPA Regulate Carbon Dioxide Using The Clean Water Act?

John Harwood excitedly types up Administration pleadings that they can get a half-dozen Republican votes for a climate change bill:

Within the 59-member Senate Democratic caucus, the conservative Blanche Lincoln of Arkansas and Ben Nelson of Nebraska appear out of reach. But as Mr. Graham prods his party to respond to younger voters’ environmental concerns, there is a chance of offsetting Democratic defections.

“There’s a path to five or six Republicans,” said Carol M. Browner, Mr. Obama’s coordinator of energy and climate policy. Among the prospects: moderate Senators Susan Collins and Olympia J. Snowe of Maine; Mr. Kerry’s Massachusetts colleague, Scott Brown; and George LeMieux of Florida, Richard G. Lugar of Indiana, and Judd Gregg of New Hampshire.

George LeMieux, Charlie Crist’s stalking horse in the Senate, hasn’t deviated from the conservative position a whit since he arrived. Judd Gregg? That’s unpromising. Lugar did put out his own energy efficiency/renewables bill last week that wasn’t too bad, so he may be gettable, along with the New England three.

But I’d take less stock in Harwood’s stenography than this from McClatchy, which suggests that the White House may be looking at an alternative strategy:

The Environmental Protection Agency is exploring whether to use the Clean Water Act to control greenhouse gas emissions, which are turning the oceans acidic at a rate that’s alarmed some scientists.

With climate change legislation stalled in Congress, the Clean Water Act would serve as a second front, as the Obama administration has sought to use the Clean Air Act to rein in emissions of carbon dioxide and other greenhouse gases administratively.

The acidification of the oceans, at a higher point than any time in the past 20 million years, represents a global biology crisis, which could prove disastrous to the food chain, the economic viability of coastal fisheries, self-sufficiency for the developing world and the delicate ecological balance of the planet. It already falls within the purview of the EPA, but the standard has remained the same since 1976. Needless to say, acidity has a pollutant is a much more acute problem now.

If the EPA is considering using the Clean Air and the Clean Water Acts to regulate CO2, it suggests an alternate strategy, leaving behind the legislative process for a rulemaking approach. Honestly, at this point, pending changes to what appears to be coming out of the Senate, that’s for the best.

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David Dayen

David Dayen