07/16/2010 02:30 pm ET | Updated May 25, 2011

What Next After the Impending Collapse of Climate Change Legislation?

There is no better evidence of the dysfunction of the Senate than its inability to address the crisis of global warming.

Several weeks ago, news reports out of a Senate Democratic caucus meeting were that key senators were inspired -- a powerful word -- by the commitment and momentum to address global warming.

This week there are reports of secret negotiations building up to an energy package that blends a legislative reaction to the BP oil disaster to a global warming bill focused solely on the utility industry.

Reducing pollution from the utility industry is a critical goal, since it is heavily dependent on burning coal with dozens of old dirty plants. And we surely need to radically modify existing laws that subsidize deep offshore oil drilling, cap liability for spills at absurd levels, and allow regulators to freely depart and work for the oil industry undermining the public interest.

In a reasonable democracy, this would be easy. But that is not what we have -- particularly in the Senate where excessive deference to secret holds and filibuster rules allow determined obstructionists to name extremely high prices to get from vote number 50 (remember that Vice President Biden can break a tie vote) to the magic number of 60. Between 50 and 60 is a particularly noxious band of senators, depending on the issue at hand.

So, once again, news reports indicate that "Senator Kerry is open to a deal." Unfortunately, we know where this is heading -- it can only be ugly. From the outside, we already know some of the demands on the table.

Certain farm belt senators want $30 billion to extend the tax credit for subsidizing ethanol, with all of its environmental negatives.

Darren Samuelsohn reported at the aggressive efforts of the utilities to leverage the desperate appeal to pass legislation with sweeping exemptions from EPA rules. Early reports are that, inside the beltway, green groups are hanging tough, which is to be commended.

We finally have an EPA which is run by people who care about the environment and has not yet been hamstrung by Congress (as was the Clinton EPA after Newt Gingrich took over the House). The EPA is hard at work -- though years behind due to the Bush administration -- in regulating some of the worse side effects of burning coal, such as hazardous coal ash and mercury emissions.

With dire predictions for the impact of both the 2010 and 2012 elections on the number of progressive senators, it is frequently argued that those who care urgently about the environment must seize this moment, or matters will get much worse. This is true only in a world limited by a commitment to environmental change that can attract 60 votes in this Senate or the next.

David Roberts of, who has been an ardent and thoughtful defender of passing climate change legislation this year, came off vacation to shout that "utilities are trying to pull off the scam of the decade."

It is a tragic truth that there is no constructive environmental legislation that can pass in the current context. Republican and special interest obstructionism have been brilliantly successful in stopping progress at utterly no political cost.

In contrast, the EPA, if defended with even remotely the zeal that passing diluted climate change legislation, can enact rules that get us significantly down the road.

Thanks to Newt Gingrich's Contract with America, Congress does have powers to overturn regulatory rules. But it is very difficult to do and has only happened once -- compare that with successful filibusters against progressive change.

If the EPA enacts rules that limit greenhouse gases directly or indirectly simply by making the coal industry clean up its own messes, all that is required is for President Obama to have the stomach to veto a congressional override. It is far easier to get the votes to sustain a filibuster than to pass legislation given current Senate rules.

Both houses of Congress must vote by a two-thirds majority to override a presidential veto. We have that many environmental votes and should have those votes through the end of 2012. The goal of environmentalists -- be they in the Senate or in advocacy groups -- should be to use the remaining years of the first (and perhaps the last) term of the Obama administration to slow global warming.

For those who argue that legislative action is the only way to avoid judicial challenges and gridlock, they need to catch up on our current Supreme Court, which has been audacious in its willingness to seek out and overturn legislative action. Surprising to many, a majority of this court in fact voted in 2007 to uphold the obligation of the EPA to regulate greenhouse gases under the Clean Air Act.

We are better off getting ready for the post-election war to gut the EPA than spend literally tens of billions bribing senators 50 to 60.

It is time to face the hard truth that there is no deal to be done in this Senate that will protect the earth. Given the current need for 60 votes, the utilities have more power in the Senate than the environmental community. The cost of placating them legislatively will haunt us for decades. We need to fight this war on a different battle ground.