The two most important questions that both critics and supporters of Waxman-Markey must answer

First, is the Waxman-Markey climate and clean energy bill compatible with “” indeed integral to “” a national and international effort to keep global warming as close as possible to 2°C?

Second, what would be the outcome if the bill failed?

This is the basis of the 500-word post at Yale e360, in which they asked “11 prominent people in the environmental and energy fields for their views on this controversial legislation.”

Much of the writing about about the bill — particularly by people critical of it — don’t fully address these two crucial questions, especially the second, and so they are, as I see it, not particularly helpful to the debate.

Many people, including some commenters here, are under the misimpression that absent passage of this bill, the EPA can and will use the endangerment finding to achieve comparable regulation of CO2 under the Clean Air Act.  That view has several flaws.

First, whatever Obama might do with the EPA — and it would take many, many years to put in place a program that could substantially reduce existing emissions (see below) — could be undone by a subsequent administration, which is not true of climate legislation.  Politically, it would be quite easy for a future President to simply stop the EPA process in its tracks or allow the myriad lawsuits against it that will inevitably occur to delay the process to death.  What political cost could their be if the forces of denial and delay had already triumphed and stopped the US political system from embracing comparable legislative action?  Undoing a law that was passed by Congress, however, and then used as the basis for international negotiations, would be hard even for a President Palin to do.

Second, whatever Obama might do with the EPA, the rest of the world would know that the United States political system is incapable of agreeing to binding targets, so that would certainly be all-but fatal to the international negotiation process or a bilateral deal with China.

Third, if Congress rejects this bill, then, domestically, legislative action on greenhouse gas emissions will be dead for a long time. How long did it take before we got a chance to take up serious health care legislation after it died?  How long since we reconsidered an energy tax after the BTU tax died?  How long since we have passed major legislation to strengthen the Clean Air Act or Clean Water Act to deal with obvious dangers to public health?  Still waiting!

Fourth, the EPA authority is most easily translated into regulating emissions from new sources. Obama has already announced the strongest regulations ever for tailpipe greenhouse gas emissions. That mostly leaves new coal, which was already starting to collapse, thanks in part to the renewables and efficiency in the stimulus package (see “I predict U.S. carbon dioxide emissions peaked in 2007!” and “EIA projects wind at 5% of U.S. electricity in 2012, all renewables at 14%, thanks to Obama stimulus!”  The new natural gas supplies will get most of the rest of those (see “Climate action game changer, Part 1: Is there a lot more natural gas than previously thought?” and here).

As Center for American Progress chief John Podesta explained in a recent Berlin speech, “it would be difficult for the EPA to enact a CO2 cap and trade without congressional cooperation.”  States that wanted to frustrate the process could probably do so for years, and there would also be lengthy private sector litigation.  So, while useful for taking some limited actions, the CAA is simply is no substitute for GHG legislation in which Congress legislates shrinking caps.

So I repeat my assertion that Waxman-Markey is the only game in town.  If it fails, I see no chance whatsoever of stabilizing anywhere near 350 to 450 ppm since serious U.S. action would certainly be off the table for years, the effort to jumpstart the clean energy economy in this country would stall, the international negotiating process would fall apart, and any chance of a deal with China would be dead.  Warming of 5°C or more by century’s end would be all but inevitable, with 850 to 1000+ ppm.  If Waxman-Markey becomes law, then I see a genuine 10% to 20% chance of averting catastrophe “” not high, but not zero.

I should add that the death of Waxman Markey is not fatal to stabilization efforts merely because of what it does to prospects for national and international action — but also because of what it says about our politics.  It would obviously still be theoretically possible to stabilize below 450 ppm, but in practice, failure of W-M would signal that the deniers and delayers (including groups like The Breakthrough Institute) had triumphed with their disinformation campaign to such a great extent that even too-weak targets were politically unattainable.

And this brings as back to the first question, is Waxman-Markey compatible with “” indeed integral to “” a national and international effort to keep global warming as close as possible to 2°C?

The answer to that question is absolutely “Yes.” While the bill is weaker than it should be, particularly its 2020 target, it mandates a 42% reduction in U.S. greenhouse gas emissions by 2030 and an 83% reduction by 2050. Building on the massive investment in clean energy in the economic stimulus, the bill completes the transition to a clean energy economy. It devotes some $15 billion a year to clean technology development and deployment. It would be the single greatest push toward an energy-efficient economy in U.S. history.

The bill directs substantial funds toward a global effort to stop tropical deforestation.  Yes, on paper Waxman-Markey authorizes up to 2 billion in offsets to be used in place of domestic emissions reductions, nowhere near that amount of offsets exists today, nor is there any reason to believe they ever will. Moreover, many of the domestic offsets are, in fact, actual emissions reductions, but just not in the capped sectors (as discussed here).

Here is the key point:  If the nations of the world agree to adopt emissions targets, timetables, and strategies compatible with stabilization near 2°C, then the international offsets market will remain relatively small and expensive “” especially compared to the large pool of low-cost, domestic, clean-energy emissions reduction strategies (see “Game changer, Part 2: Why unconventional natural gas makes the 2020 Waxman-Markey target so damn easy and cheap to meet“).

[The first half of the previous sentence is sufficiently important that it deserves a post of its own. Stay tuned!]

20 Responses to The two most important questions that both critics and supporters of Waxman-Markey must answer

  1. Jim Beacon says:

    No. I’m sorry, but the first question everyone must ask about Waxman-Markey is “Did we really need more than 600 pages to do legislate what needs to be done and isn’t 600 pages of dense text likely to have hidden in it so many loopholes, exceptions, obscure procedures and contrary regulations and guidelines that no one except a high-powered corporate law firm will be able to make total sense of it (and thus be able to use it to their corporate clients benefit).”

  2. Tom says:


    And to Jim Beacon: complicated legislation takes a lot of pages. That’s the nature of the beast. Rejecting our only shot at a climate solution because it takes a lot of pages would be insane.

  3. ecostew says:

    Joe, I agree and would add:

    AGW mitigation should begin now before cap and trade and/or a carbon tax in US & globally, but a US AGW mitigating law and international agreement(s) adequately mitigating AGW are absolutely necessary, and soon. US federal agencies must focus their policies and actions on mitigating AGW now. For example, EPA should aggressively pursue GHG emissions using the Clean Air Act. The National Environmental Policy Act (NEPA) is a vehicle in some cases for selecting climate-sensitive alternatives and pursuing mitigating measures for AGW GHGs, etc. For example, the departments of Interior and Agriculture land management strategies could be used to mitigate AGW using NEPA. Also, the Department of Energy could use NEPA to pursue a sustainable energy security (grounded in transparent LCA that includes ROI, EROEI, and CF), which mitigates AGW. In addition, federal agencies could also ensure food and water security while protecting the environment. Taking such an approach, we most likely would not be pursuing coal, oil shale and some biofuels. We would be focused on LCA sustainable wind, solar, geothermal, wave, tide, and hydro. NEPA could also be used to enhance conservation and efficiency. AGW mitigation must be global & major contributors to GHG emissions must lead in securing sustainable energy while mitigating AGW, securing food and water, and protecting the environment. Additionally, quickly securing sustainable renewable energy for resource extraction/use is essential. Moving forward with adaptive natural resources management with intensifying AGW is essential.

  4. David B. Benson says:

    Tell that to congresscritters.

  5. Tim R. says:

    But what if . . .

    The Senate implements the three non-cap-and-trade pieces of ACES only. And the EPA got serious about using the Clean Air Act. EPA could make endangerment findings in numerous sections that ACES won’t ever touch. Those regulations could take a couple years to bite, but so does ACES.

    As for international negotiations, cap and trade is not required. Countries will have the flexibility to get to their national caps however they want. It could be done with regulations. Obama can negotiate a strong national cap, if he wants, without ACES.

    The CAA does not cover new sources alone. Find GHGs as a danger and as criteria air pollutants. If states don’t want to implement the Fed can. Write performance standards that lock down emissions in multiple sectors.

    All EPA has to do is start seriously down this road and the enviro hand is seriously, seriously strengthened. Suddenly, it is the forces of evil that will need a bill and the leadership in the House or 40 in the Senate could kill anything that wasn’t strong.

    Now what would be wrong with that?

    It is a pity that the EPA didn’t start down this road in April instead of the weak, one sector finding that even left out black carbon. Obama is serious about clean energy, but so far, I haven’t seen evidence he is serious about climate change.

  6. Morris says:

    Tom, agreed, brilliant. If the reader has a moment, please follow the Yale 360 link in paragraph three above and read the comments by:

    David Jenkins, Vice President for Government and Political Affairs, Republicans for Environmental Protection.

  7. Tim R has the right idea.

    We can get started with the reductions in the parts of ACES that do not include cap and trade. That gets rid of the most controversial pieces of the legislation, greases the skids for passage, and enables us to get something on the books prior to Copenhagen.

    At the same time, we can use EPA to get going on regulating CO2 from coal plants. The mere threat of that action should cause a significant change to the market economics of coal and make renewables more attractive.

    That approach has the added advantage of avoiding lock-in of too low targets prior to COP15.

    Anyone paying attention to Bonn has to know that Waxman-Markey’s targets are a joke to the global South. It is simply untrue that passing Waxman-Markey’s cap and trade title strengthens our hand at Copenhagen. Instead, it may single-handedly kill the possibility of a deal at COP15.

  8. Greg Robie says:

    As to the 1st question, ACES only applies to U.S. sources. Our consumer product based economy requires much of the planetary CO2e production to satiate our consumption that drives ours, and the planet’s, economy. Only a small part of that CO2e is from “U.S. sources.” Hence, Waxman-Markey is not framed particularly well to control the GHG production our lifestyles generate. It places unrealistic burdens on the countries to which we have outsourced business to avoid legislative controls like the Clean Air Act of 1970. Besides, as far as physics, biology and chemistry are concerned “close as possible” is a pretty irrelevant use of language.

    The second question, again from the perspective of physics, biology and chemistry, is that passed or not, the ACES fails. It is like building a 4’ levee to deal with a 40’ tidal surge. IMHO, prohibition does not work. It is my experience that human nature is such that expecting to build the levee this legislation is a start for another 36 ‘ 1“ higher—and with no gaps—is something that will not be accomplished, especially when it is initially being marketed as costing each of us the current price of a postage stamp a day. The 4’ levee costs that much in the best of all possible worlds (and in today’s dollars; today’s economy), and then, only at the outset of its implementation.

    We’ve blown it, Joe. In Rio in 1992, third world elders told my friends who attended the people’s summit that they were praying for a religious revival in the US so that the planet might be saved. Well, we’ve had our revival. Our religion is global capitalism. It is based on consumer credit and fiat currencies denominated in debt. Like the cancer it is, it has reached its limits of growth.

    On DemocracyNow this AM it was reported that $13.6 trillion has been chipped into the offering plate for financial sector (which, through the mystery of fractional reserve banking, has used this to secure $136 trillion in derivatives of unknown value). Is this but a down payment for shoring up the $590 trillion that the derivatives market was once, through an undying faith in global capitalism and free/unregulated markets, worth?

    In general, a religious revival, is radical change. Waxman-Markey may be ”historic,“ but it is not radical. In part this is because those marketing it have not sat down and considered its true cost . . . and that true cost can be only willingly paid when a society is religious about the required change. Prohibitions only work socially when they are embraced religiously. Thinking that the prohibition of something, which is religiously valued, can be legislated into irrelevance is to wish for something that homo sapiens have never been wise enough to pull off.

    In any event we aren’t even close to that place of religiously desiring radical change. Paradoxically, a failure of ACES might get us closer to that place of metanoia than its passage. I find it helpful to remember that all the GHG our lifestyle and ”investing“ require must be controlled for 2°C is not to be exceeded.

  9. djrabbit says:

    Once again, you tell it like it is, Joe.

    Some of the big enviro groups are using brinkmanship (criticizing the bill as a whole) in an effort to cut back on the offsets & allowance provisions, remove the CAA exemption, or even (in one scheme I heard recently) demand allowances for great lakes restoration(!) Maybe they’re just more optimistic than me — I’m just hoping that we can get ACES passed without it getting watered down any more.

    We can always reduce the 2020 or 2025 cap size a few years down the road, once we’ve proven (1) that contrary to what you hear on Fox, Cap & Trade does not mean national-economic suicide, and (2) that the scientific consensus demands lower caps because AGW is happening faster than most laypeople realize.

  10. john says:

    I believe there is another question that must be asked — Does Waxman- Markey’s short term target (17% below 2005 levels) avoid the possibility of triggering self-amplifying feedbacks, which would make its more aggressive outyear goals irrelevaqnt and unacheivable?

    I believe the answer to that question is no.

    Does that mean I oppose it? No. But it does mean that we should fight like hell to strengthen those goals. Abrupt climate change has occured in the geologic record several times — and it typically lasts for millions of years.

    The 2020 goal is particularly egregious because it is quite easy to do far better.

    This should not boil down to a “for or agin” argument. If, after we exhaust all options for influencing congress, we are stuck with this dangerous and pathetic goal, then I will swallow hard and urge my Representatives to vote for it.

    But I don’t think pre-emptive capitualtion is the best course of action, given what’s at stake.

  11. Omega Centauri says:

    Thanks Joe. You are providing an amazing service!

    IMHO Joe, and djrabbit are correct here. We gotta show we can make even a paltry level of progress. Then we gotta show, that it won’t kill our economic prospects. Only then do we have a hope of switching towards a more appropriate speed of transition. The tragedy, is that we are starting this twenty years too late. But, that is water over the dam. We can only progress from the current state of affairs. And we can only change the course of a supertanker slowly. Risking, our place at the wheel by insisting on too much too soon could be deadly.

    Personally i doubt we can make 2C (or 450ppm). But those are arbitray targets. Sacrificing (say) 3C, because we can’t reach 2C, could commit us to 6C.

  12. Ken says:

    “First, is the Waxman-Markey climate and clean energy bill compatible with —- indeed integral to -— a national and international effort to keep global warming as close as possible to 2°C?”

    I think not, because (1) China and other developing counties will not accept binding emission caps; and (2) if they did, then the U.S. Congress probably would not because the massive international offsets that Waxman-Markey is relying on –- exceeding our entire national emission target in 2050 -– would be appropriated by other countries to meet their own compliance obligations.

    [JR: Your analysis is exactly backwards. If China won’t accept binding emissions caps, then nothing we do matters, so your comment is irrelevant. But I strongly disagree with that view. The key point is that if China could, then this bill is clearly integral to making that possible. And if they do, then the international offsets market will indeed shrink and become much more expensive. That’s my point!!]

    “Second, what would be the outcome if the bill failed?”

    If it fails, then the Waxman-Markey approach to climate policy would no longer be the “only game in town”. For that matter, carbon tax legislation — which is more about extracting revenue from regulated industries than about reducing emissions — would not be the only other game in town. The political leadership would be open to more creative and pragmatic approaches to GHG regulation.

    Case in point: Obama’s “strongest regulations ever for tailpipe greenhouse gas emissions” will motivate investment in vehicle efficiency technologies only around half the breakeven (zero-net-cost) investment level, considering only the direct benefit of fuel savings. (Never mind environmental and energy security benefits.) Congress does not yet know how to effectively regulate vehicles.

    The fundamental flaw of Waxman-Markey’s caps-and-standards-based regulatory approach is that the policy objective of achieving a predetermined emission target at minimum cost is inappropriate when the target is not science-based and is insufficient to achieve environmental sustainability. In view of political realities, the appropriate goal of climate policy is not to achieve an unsustainable emission target at minimum cost; the goal should be to achieve minimum emissions at acceptable cost. Waxman-Markey’s economy-wide trading system will not do this. It will nullify potential environmental benefits of technology advancement and economies of scale by exploiting such advances to further reduce the global emissions price, not to further reduce global emissions. Voluntary efforts by individuals and corporations to further reduce their carbon footprint would be futile, as any such actions would simply allow industrial emitters to correspondingly increase their carbon footprint.

    [JR: But the target is science-based. It just happens to be inadequate. Your voluntary mechanisms, however, are doomed to fail.]

  13. Jim Beacon says:

    So, nobody thinks there are zingers hidden in those 600 plus pages, huh? Well, what about this report in the yesterday’s LA Times about Waxman-Markey:

    “As a result, the Environmental Protection Agency projects that even if the emissions limits go into effect, the U.S. would use more carbon-dioxide-heavy coal in 2020 than it did in 2005.”


    “Environmental groups also say the bill could set off a boom in the construction of new coal plants because of provisions that would restrict legal efforts to block such projects.”

    [JR: Gimme a break. Those “environmental groups” are The Breakthrough Institute!!! If the coal industry wants to believe their crap, I say that’s great. But if you believe their crap over my analysis, well, you are clearly at the wrong blog. This bill would start squeezing out new coal once it becomes law, and begin to pinch existing coal by the middle of the next decade.]


    “Under the plan, the EPA projects that after 2020, conventional coal use would begin to fall quickly. That prediction rests on a still-uncertain assumption that new nuclear power plants would begin to come on line.”

    Full story at:,0,6722721.story

    So, we settle for a not-good-enough-to-prevent-600 ppm “target” of a lousy 17% CO2 reduction by 2020, then give the coal industry everything they want, including a $60 Billion “clean coal” development slush fund, then make it harder for local communities to stop new coal plants from being built, and then pin the theory that coal burning might start “rapidly declining after 2020” dependent on the gotcha of getting a bunch of new nuke plants built by then, and then implement an uber-complex paper-trading Cap&Trade ponzi scheme that nobody even pretends they understand completely… but, hey, it has to be complex legislation, right? Complex like a fox is what it is.

    600 pages hides a lot of sins, folks. And the more I find out about Waxman-Markey, the more it sounds like a government bail-out for the coal and nuclear power industry and the less like a bill that will do anything meaningful to prevent catastrophic climate change.

    I think we been had — and are now having it pushed down our throats by our own advocates just because they’ve been worn down into accepting the trickle-down philosophy prevalent in Washington that “capitulation disguised as compromise is everything” and that “something, no matter how pitiful and corrupt, is better than nothing”.

  14. Peter Croft says:

    In my view W-M is designed to fail, most probably because everyone involved in writing and voting for it, underneath it all, want it to fail.

    On this I am confident it will deliver.

  15. john says:

    A few more thoughts on abrupt climate change and the prospect for self-amplifying feedbacks by 2020:

    1) Methane concentrations have been rising for 3 years now;
    2) sattelite data shows it’s coming from the melting perma frost and calthrates in the northern lattitudes.

    Bad stuff, happening now. The only real question for us is , “At what point does this become a self-reinforcing feedback loop?”

    We can close our eyes, cross our fingers and hope that point is sometime after the weak 2020 goals in Waxman, OR we can push for more aggressive goals.

    More aggresive goals would have the added benefit of putting us in a better position to negotiate with China and India at Copenhagen.

    I just can’t see how anyone who knows the science can be anything but scared as hell that this bill will pass as is.

    And yet, having said that, the only thing scarier is no bill passing.

  16. hapa says:

    these are good questions about the bill, but they are out of context. i thinj the questions the country and world face — in a global recession, leading to an exodus from one tech base to another — are more like this:

    Everything we need to do has been made harder by debt. Net state debt now exceeds £700bn. The RBS and Lloyds shambles will add between £1 trillion and 1.5tn. National debt is likely to reach 150% of GDP next year: well beyond the point at which the IMF declares developing countries basket cases.

    This introduces two environmental problems. The first is that there is no money left with which to fund a green new deal. The second is that we’ll be able to pay off these debts only by resuming economic growth. Greenhouse gases grow because the economy grows. The UK’s liabilities make the transition to a steady state economy, let alone a managed contraction, much harder to achieve. They appear to commit us to either growth or default for at least a generation. The debt crisis is an environmental disaster.

    george isn’t allowing for the possibility of spending new infrastruture into existence without borrowing money, which is looking like the best option to me the more “fiscal policy” is applied to rescue a stupidly-credit-dependent system.

    people talk about “unlimited growth is the ideology of the cancer cell.” i try to stay away from formulations like that. but when i was thinking about this the other day i had to admit i don’t see the mainline thinking putting 2 and 2 together about what future labor productivity will be doing.

    will it be rescuing the biosphere? or will it be repaying yesterday’s creditors?

    you can’t say “it will be repaying yesterday’s creditors by restoring the planet.” the work the planet needs will incur its own costs, and ordinarily the economy grows by “putting more people to work in more productive ways.”

    tomorrow, the skimmable cream of our labor productivity will be very busy — reducing our ecological footprint, and the main source of population growth will be robots, eh?

    the ponzi scheme metaphor doesn’t get us close enough to this.…

  17. Rick Covert says:


    I’m leaning toward ACES but when I get stuff like this from Progressive Democrats for America it makes me stand up and think. They are posing this form letter to edit before sending to your congressman. It starts out:

    The American Clean Energy and Security Act of 2009, HR 2454, is a very flawed bill. The bill does not even attempt to meet the reductions targets that climate scientists warn are necessary to avert catastrophic climate disruption.

    As your constituent who is deeply concerned about the future of our children, I am writing to ask you to address the following concerns:

    • The Renewable Energy Standard (RES) must be restored to the more stringent levels that were in the ACESA draft released in March,
    • Strengthen emissions reduction targets, and eliminate or significantly reduce offsets and strengthen verification of offset quality,
    • Protect low and middle-income families: eliminate free allowances to industry, and recycle revenue directly to households.
    • Eliminate carbon markets and substitute a direct pricing mechanism,
    • Eliminate carbon capture and sequestration (CCS) and limit transition assistance to trade-exposed industries. Increase investment in renewables.
    • Protect EPA’s authority to directly regulate emissions of greenhouse gases under the Clean Air Act.

    For more in-depth details on these provisions, [follow this link: INSERT LINK TO LETTER]

    I am also concerned that Congress is rushing to action without considering other effective mechanisms; the revenue-neutral carbon tax, managed price approaches and the cap-and-dividend approach have yet to be debated.

    It will be very difficult to extricate ourselves from this course of action should ACESA fail, and I am counting on you on to ensure that any climate legislation that earns your support, will actually meet the targeted goals for carbon emissions within the recognized timeline.

    Please support the above changes to HR2454, or VOTE NO on ACESA.

    Please forward this urgent alert to like-minded friends and family members.

    Unless we act quickly to amend the ACESA, a very flawed climate bill will pass the House without considering other effective options. As written the ACESA will not meet the required targets to reduce emissions, will create a $2 trillion dollar derivatives market, and will cost consumers like us more for our energy without much benefit–that’s just a few of it’s flaws. Please ask your representative to amend the bill or vote NO.


    Put in those terms ACES doesn’t come close to matching the threat from global warming.

    [JR: Since they don’t answer either of the two key questions, they are really wasting a lot of people’s time with this unproductive lobbying campaign. They have the luxury of pretending that there is another game in town, realists don’t. The derivatives market is nonsense. The CO2 trading system may be many things, but it is not derivative. It is a primary market, and frankly much easier to verify them many other things that we trade daily and have for decades. It is really quite difficult to hide substantial purchases of coal, oil, or natural gas — let alone to continue doing so year after year, which is what it would take for any major fraud to succeed.]

  18. Greg Robie says:


    Adding to your points, it is the _global_ average for methane that has been rising (again) for the last three years. Given methane’s short life in the atmosphere (~10 years), its highest density being in the northern latitudes, and the likelihood that changes in agricultural practices (ex.: rice strains) fed strongly into “decrease” in global average, it is not only possible, but likely, that the methane time bomb is already detonated. Adding to our general ignorance is the report from the ICCS this past March that there are only 20 scientists world wide studying atmospheric methane (likely because the risk was seen as very low . . . and sometimes even science is all about the money).

    I’ve spent a fair amount of time staring at the animated graph at this URL:

    The most relevant thing I have gleaned from this is that the metric of a global average is not the best way to measure or think about atmospheric methane. The positive feedbacks you note as a future occurrence seem highly probable to already be in play and the “average” is only now unmasking this.

  19. Rick Covert says:


    So the legislation will give us a 10% to 20% chance of averting a 5º C rise in temperature? I remember the health care reform legislation of 1993. It failed miserably in the Congress. We’re just talking about it again and yes the special interests dominate the agenda.

    We’re also talking about reduction of green house gasses again. I’ll take that 10% to 20% chance to avert a 5º C temperature rise because if it fails we will have to wait 16 years for this to come around again. By then it will already be too late to make a difference. By 2025 it will be all to obvious that we are beginning on a road to global climate disruption.

    Thanks for putting the ACES bill into context.

  20. john says:


    Thanks for the link. Frightening — and I hope, a heavy dose of reality and context for this bill.