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So What Happens If There's No Climate Bill This Year?

The chances of global-warming legislation passing through the Senate before the end of the year are looking increasingly bleak. Onlookers had been expecting Barbara Boxer and John Kerry to introduce a comprehensive climate and energy bill on September 8, shortly after Congress returned from recess. But on Monday, the two pushed the deadline back indefinitely, saying that they expected to unveil the bill "in later September" and chalking up the delay, in part, to Kerry's hip surgery and preoccupation with health reform.

Sources on the Hill say they're now certain the Senate won't take up climate change until after the health care debate is resolved—which, realistically, won't happen until around Thanksgiving. And even if Kerry and Boxer can get their bill out by late September, the other committees that want a piece of the bill won't be able to work on it right away. For instance, Max Baucus, who chairs the Finance Committee, has said he wants to oversee the formula for allocating carbon permits under the cap-and-trade program—but he's currently busy with health reform. To date, his committee has only held one hearing on cap-and-trade, which Baucus couldn't attend because he was working on health care.

So, although Harry Reid's office still insists that the Senate will "have ample time to consider this comprehensive clean energy and climate legislation before the end of the year," there's a good chance a bill won't get finished in the Senate before the Copenhagen climate talks start on December 7. If that's the case, is there anything Congress or the White House could do to make sure the Obama administration doesn't show up at the talks empty-handed? (True, Obama could point to fact that the House has passed a climate bill, but it's unlikely that other world leaders will accept that as a down payment on Senate action.)

One possibility is that the Senate could shift to an incremental approach and pass the energy bill that passed out of Jeff Bingaman's Energy and Natural Resources Committee in June. Reid has said that he wanted to combine that bill with a climate bill that caps greenhouse gases, but there's no word on whether he'd move the energy piece alone if the issues around cap-and-trade can't be resolved in time. The Senate energy bill is weaker than analogous portions of the House bill—for instance, it requires utilities to get just 15 percent of their power from renewables or efficiency by 2020, compared with the House bill's 20 percent. It would likely pass the Senate with ease, but would also do little to reduce U.S. carbon-dioxide emissions.

That leaves direct EPA action under the existing Clean Air Act—but even that may not move fast enough to offer a boost for the Copenhagen talks. The agency's head, Lisa Jackson told reporters on Tuesday that she expected to move forward "in the next months" with the EPA's determination that greenhouse gases are a threat to human health. The EPA had reached that finding back in April, and it has gone through a 60-day public-comment period, but the ruling has still not been finalized. And once the formal declaration comes, that will still only be the first step—the agency will then have to begin the lengthy process of issuing formal regulations on mobile and stationary pollution sources.

The administration has already unveiled new fuel-economy standards for vehicles. The bigger challenge will be tackling stationary sources—power plants, refineries, manufacturers. Coal-fired power plants alone account for 40 percent of U.S. emissions. Crafting those rules is likely to be a drawn-out process: Environmental law experts predict that formulating rules for stationary sources will take at least eight months to complete. Even if the EPA raced to announce proposed rules by the end of 2009—in time for Copenhagen—the rules would still have to undergo a one- to two-month comment period and subsequent review before they took effect. In all likelihood, the fastest the EPA could have new rules for stationary plants in place would be mid-2010. (And that's barring any legal challenges.)

That could leave the United States with a weaker negotiating position at Copenhagen—unless a major congressional breakthrough arrives in the next few months. That's still not out of the question: On Monday, Boxer and Kerry sounded optimistic that they'd be able to address the concerns of other senators before they formally introduced the bill. But given the realistic timetable for Senate action, they'll need to work those issues out immediately if the bill stands any chance of movement before fall.