Here are the money lines, all noting Sen. Murkowski’s clever plan to simply call the Left on their rhetoric and posing about the Kerry-Boxer cap-and-trade bill S. 1733, a bill that was marked up in the Environment and Public Works Committee in a somber yet urgent November affair, reporting it to the Senate floor and, oh yes, the Copenhagen conference:

“‘Boxer-Kerry is a non-starter, and the amendment — if that’s what it said — it would expose that,’ said Murkowski spokesman Robert Dillon. ‘We obviously don’t want to pass the bill; we’re confident that it would fail.’ Holding a vote on the Kerry-Boxer bill would ’show the sense of the Senate, where it is,’ Dillon said….

‘What she’s trying to do is force Democrats to vote against a bill that is clearly one that is not ripe to be brought to the Senate floor,’ said Daniel Weiss, a senior fellow at the Center for American Progress Action Fund, noting that the bill was intended to be combined with an energy bill aimed at lowering energy costs and spurring investments in technology.

‘This is Lisa Murkowski giving the finger to those who believe we need to reduce global warming pollution because this is not a serious proposal,’ Weiss said.”

Well, that’s not quite what it is, but it does reveal that someone was giving the rest of us the finger all along. And I am more than a little amused to note how the “us” includes not a few fellow travelers in Copenhagen.

Team Soros’s Dan Weiss calls the marked-up, EPW-approved Kerry-Boxer bill, rushed through to impress the Europeans with the Dems’ seriousness of purpose and courageous stance on the precipice of bicameral enactment, ”not a serious proposal.”

Gosh that’s great stuff. And quite a turnaround for our eager green beaver who, when peddling the pose, touted the bill as “another signal to the international community that the U.S. is serious about achievement of real reductions in its global warming pollution.” But, hey, being a green means never having to say you’re sorry. Just ask all of those Third World children who’ve paid the price for the agenda.

Still, no kidding. Nice you finally admit that when it looks like this bill — “marked up” in, and voted out of committee to the floor for quick packaging overseas — looks like it might be something your pals can have held against them in a meaningful way. Something about the prospect of a hanging and how it aids one’s thinking, etc. Or, maybe, it’s just that it’s rather easier to strike a silly pose for some Euro-love (still an epic fail, incidentally) than it is to confront your voters.

What poseurs! he is effectively admitting about a bill reported to the floor as well as publicly and we now know dishonestly hailed, if adding his own touch of absurdity: nothing added by other committees would unring the bell of cap-and-trade — the objective of which our president has admitted is to cause your energy prices to “necessarily skyrocket” and “bankrupt” coal and dependent industries. So they’re reduced to some strange line of saying it’s painful but, you see, we were planning on adding some windmill and pixie dust “green jobs” nonsense to it and suddenly take away the pain (or, well , at least distract from what we’re really doing).

Second, recall and prepare to catalogue the promiscuous use of the line, in promotion of “must act now!” legislative pain, that “hey now…we don’t want EPA to do this!”. It does provide them a nice hard place against which to be pressed: possibly they might be forced to say “but I don’t want Congress to either!” (or they do want that but just not via the bill marked up in and voted out of committee and sold to the Europeans et al. as being really great shakes and almost there…)?

Great stuff. Really. And yet another wonderful exhibit about how seriously to take these people.

Though Congress voted to kill federal funding for ACORN in September, funding for the disgraced group could resume as early as December 18th, when the Continuing Resolution, which provides funds to run government while the final budget is complete and contains the funding ban, expires.

The question isn’t whether federal funds will flow again to the ethically-challenged group, but possibly when and how much money will flow.  If cap-and-trade legislation now making its way through Congress becomes law, the flow could be enormous.

In June, the U.S. House passed the American Clean Energy and Security Act (better known as Waxman-Markey), ostensibly to alleviate global warming by mandating an 83% reduction in U.S. carbon emissions by 2050.  A similar bill, introduced in the Senate by Barbara Boxer (D-CA) and John Kerry (D-MA), has been approved by the Senate Environment and Public Works Committee.  Buried in both bills are provisions that would allocate vast amounts of federal money to community development organizations such as ACORN.

Members of Congress who played to public outrage by vociferously objecting to ACORN’s abuses may now want to take the time to read some of the more obscure provisions of the proposed climate bills.

Section 264 in the Waxman-Markey bill provides up to $300,000,000 in funding for “community development organizations” so they can assist businesses and others in low-income neighborhoods with “conservation strategies, supplies, and methods to improve energy efficiency.”

Stephen Spruiell and Kevin Williamson, writing for National Review, help put this funding in perspective: “Think federally-subsidized consultants paid $55 an hour to tell businesses to turn down their AC in the summer.”

The Kerry-Boxer bill contains similar language in Section 156, allocating up to $200,000,000 to “promote green development in distressed communities.”

The bill makes no mention of who would oversee such programs, but the intention is clear: community development organizations such as ACORN.  In the time between the passage of Waxman-Markey bill in the House and the introduction of the Kerry-Boxer bill, reports of multiple ACORN scandals were front-page news.   Seemingly recognizing how politically explosive it would be to include funding for “community development organizations,” Kerry and Boxer apparently deliberately obscured that fact.

One can debate the wisdom of spending hundreds of millions of dollars of “green development” in economically-distressed communities–and how effective this spending would be–at a time when the deficit is already $1.4 trillion and many Americans face financial uncertainty, with the official unemployment over 10% and black unemployment 15.7%.

What we shouldn’t debate is whether it is a wise idea to outsource these programs to community organizers.  We shouldn’t.  In the past such groups have misused federal funding, skirted tax laws, and strayed beyond their missions.

As Big Government readers know, ACORN has become the poster-child for scandal.  During the last election cycle, a number of its members were charged with turning in thousands of false voter registration forms.  Last year, the New York Times reported that Dale Rathke, brother of ACORN founder Wade Rathke, had embezzled nearly $1 million dollars from the organization Most recently, multiple ACORN housing workers were caught on film apparently facilitating prostitution and tax fraud.

ACORN hopes that if its headline-grabbing transgressions become distant memories, it, as the largest community-organizing group in America, would likely become a major beneficiary of cap-and-trade, should some version of Waxman-Markey or Kerry-Boxer become law.  Such funding is even more probable given the large number of ACORN affiliates now promoting themselves as experts on environmental justice.

ACORN will likely also benefit from its close association with key players in the federal government, including President Barack Obama, who once worked closely with ACORN and has shown his continuing loyalty to the group by refraining from criticism, even while reports of its alleged unethical conduct headlined the news.

Groups across the ideological spectrum have rejected the cap-and-trade legislation as a misguided endeavor, likely to impede economic growth while delivering minimal environmental benefit.  Polls show a mere 17% of the public supports federal funding for ACORN.

If sound public policy is the goal, either of these facts alone should consign the cap-and-trade proposal to a richly-deserved death.

These two facts combined should keep cap-and-trade in the grave.  Permanently.

At risk of getting into a peeing match which my time budget may not allow me to finish, I believe that the dispute between Ed Morrissey over at Hot Air and the folks at the WashingtonExaminer joining Sen. David Vitter (and, by implication, I suppose me) is not necessary but worth resolving. Caution: it is also for the legislatively inclined or otherwise the pointy-headed. But, since I arguably joined the fray here on Big Government on Tuesday, here goes.

At issue is a provision buried in both the Waxman-Markey and Kerry-Boxer “global warming” bills.

I had to leave for a few hours after starting my comment on this, in which time I decided not to wage the war over how strongly we need to argue that it prima facie nullifies the rest of the respective legislative language that too many lobbyists tout was carefully crafted to provide “certainty”. Lobbyists of course tend to say things reflecting well on their defense of client interests.

What is inescapable is that this language dispels such notions of certainty. But that shouldn’t be shocking. The bills statutorily establish “global warming” causation, for every existing or new increment of GHGs (read: employers, economic activity), as well as harm caused. And they fail to preempt states and elsewhere EPA as needed, or the National Environmental Policy Act, Clean Water Act or Endangered Species Act, or every other tool that’s already being tried out as a “global warming” law. Let alone the rest of the U.S. Code. All of which is relevant to context, as we shall see.

My point, truncated, is that this provision at issue clears out any legal clutter possibly standing in the way of ongoing attempts to treat the ESA, CWA, NEPA, and in fact all other laws on the books as carbon dioxide suppression/avoidance laws. These laws, particularly ESA, are sweeping in their power even to shut down, but particularly to block anything new. That is in many ways a game-changer for the greens, is why it is being fought, and saves years in the courts fighting over whether such authority actually exists. Now, if you choose, read on.

The issue is whether this language poses a serious, substantive threat or not, with what I view as the controlling language emphasized:

‘SEC. 707. PRESIDENTIAL RESPONSE AND RECOMMENDATIONS.

(a) AGENCY ACTIONS.—The President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706, and to address any shortfalls identified in such reports, not later than July 1, 2015, and every 4 years thereafter.

(b) PLAN.—In the event that the Administrator or the National Academy of Sciences has concluded, in the most recent report submitted under section 705 or 706 respectively, that the United States will not achieve the necessary domestic greenhouse gas emissions reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall, not later than July 1, 2015, and every 4 years thereafter, submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

So, when viewing the meaning of this provision at issue in the appropriate context in order to view its most likely meaning, we also should note two things. First, no one says that this bill if perfectly implemented would control global concentrations of greenhouse gases – which is the trigger for deciding that “more” is needed, a trigger set where it will be exceeded ab initio – or that it would have a detectable climate impact. Which is to say, going in, we know that the answer by EPA and the National Academy of Sciences (kidding, right?) will be, also ab initio, “more”. Second, bear in mind that this language at issue was important enough to be identically inserted in bills otherwise so different that they range from about 800 pages to 1,300 pages in two different houses of Congress.

Ed styles what he sees as the Examiner’s/Vitter’s questionable reading of this as follows: “If true, it would undermine the entire notion of a cap-and-trade system — and give the President dictatorial powers over energy production and manufacturing.” (emphasis in original)

This is already sufficiently detailed that I do not think the best approach is to address the conflict as whether there are “emergency powers” for the president in the provision – that was rhetorical license, I believe, as there is no such category created here, if that’s the issue for anyone and, if it is, it’s the wrong issue. Although, in practice, a command to exercise any extension of all statutory authority found in the U.S. Code (including this bill), whatever the law or program may be, in the name of attaining some carbon dioxide objective beyond U.S. regulatory control is far too similar to such a description for me to decide that such word choice is the issue.

Instead, the issue appears to be whether this provision opens a floodgate of executive activism, and/or litigation seeking to compel a reluctant executive, such that the idea that the “cap-and-trade” is anything but a floor as opposed to the ceiling and patently phony “certainty” it is sold and, sadly, accepted by many as.

That is, the issue is the objective, first-half of Ed’s framing of things, disregarding for the moment the latter characterization of the language’s possible use.

I think the answer to that is obvious. Yes.

Whether the latter characterization, as allowing (let’s say “plenary”) power over all manner of economic activity requiring federal permits, is found in this language depends upon whether the greens would sue to ensure the letter of the 707(a) authority is followed, and prevail. Now we are speculating. But I speculate yes they would, and their record and that of the courts is that they would prevail more often than not.

Remember. The 1990 Clean Air Act Amendments brought “certainty”. Then EPA started to get clever, and the greens litigious, with the New Source Review provisions. Certainty lost. I suggest that no one familiar with that progression quickly dismisses the above language as anything but a new, substantial threat.

Then we turn to the world before Massachusetts v. EPA “global warming” case which suddenly divined that, well, golly, EPA can regulate carbon dioxide as a pollutant. Compare that to the world after that opinion, which reminds and affirms that – even though the notion of covering CO2 as a “pollutant” under the CAA was debated in 1990, and rejected – once the greens and the courts get together, with a little assist from an activist administration and EPA, we know how things turn out. Far less ambiguity has been tortured by the courts, including now the Supremes (you gotta read Scalia’s Mass. V. EPA dissent), into confessing to things that previously were dismissed far more rakishly than Ed dismisses the concerns expressed by the Washington Examiner and Sen. Vitter.

This also reminds us that the authority for an agency to do something is not the same as a requirement that it do something. That is relevant to what I see as a red herring, the idea that this “shall” language does not create any new powers, be they “emergency” or otherwise. Tru, dat. Yet at the same time it also removes any potential question whether any provision in any law which an activist administration now claims is or can be used as a GHG suppression measure is now authorized to be one. Between that and creating new authority is, I suggest, a distinction without a difference.

Remember. The day this law goes into effect, atmospheric concentrations will already be beyond what the law says is acceptable. And nothing that we do could lower them. But pretty well everything we might possibly try is now authorized. EPA doesn’t even need any new authority to change the acceptable atmospheric concentration from 450 parts per million from to 350. It’s on. All laws on the books are now interpreted, consistent with legislative intent, as tools to reduce or avoid GHG emissions in the name of lowering a global concentration.

This is why I suggest context is so important to understanding the meaning of this language.

I won’t even get into possible separation of powers or delegation issues raised here (if the National Academy of Sciences says jump and how high the federal government of the United States must act? Really?). As such, my conclusion is as follows:

The first paragraph at issue tells the executive branch to use all existing laws (and all authorities in this bill) to do whatever it thinks necessary to try and lower atmospheric GHG concentrations below where they are the day the law goes into effect; this of course goes far and beyond “cap-and-trade” quotas and timetables. The second paragraph says you can also ask Congress to spell it out if you think you are lacking authority despite “(a)”. But “(b)” is a complement to, not a condition precedent for, aggressive action under “(a)”.

This language approves the idea of implementing all federal statutes as GHG suppression measures. How huge that is is impossible to overstate. There is nothing on the books today supporting that proposition. So far, even in the absence of such a sweeping declaration, we rarely see the courts declare grants of authority as insufficient for all manner of mischief under the discretion granted EPA and other agencies called “Chevron deference”. That doctrine means that we have a fairly substantial burden of proving she was arbitrary and capricious in her interpretation of authority granted her by Congress.

EPA is already trying to implement the Clean Air Act to allow it to create a carbon dioxide cap-and-trade scheme in the context of a different cap-and-trade program the Agency had concocted despite recent admonition by a federal court that the Agency cannot just make up that very authority as it sees fit. It is also proceeding with what it calls a GHG “tailoring rule” to read the number 250 in the Clean Air Act as 25,000, even though the statute is clear that 250 means 250. And so on, as those of you who’ve toiled in the increasingly troubling field of EPA regulation know all too well.

Adopting such authority as that at issue here is not smart. The provision is not an accident. Remember. No one says this bill will have a climatic impact if the carefully designed caps and timetable are followed. If this legislation is indeed about the climate to its promoters, then this provision is intended just as it reads.

This language is a license to steal. It is a serious threat. Arguing whether it creates new authority argues a distinction without a difference. It effectively makes the cap and timetable mere sideshows, but inescapably ensures that seeking the refuge of “certainty” in this bill, as more and more CEOs have told me their lobbyists promise them is available here, is a fool’s errand.

In context, the reason for ensuring this precise language appeared identically in both “cap-and-trade” bills is clear. This is to be defeated, not dismissed. Guarding against alarmism on our side is proper. We should guard against dismissing broad grants or set-ups for interpretations of authority just as vigilantly.

But you would be wrong, on both counts. The provision is quite clearly installed for green pressure groups to sue to force the chief executives’ hands to seize all manner of power otherwise unavailable to him under our system but desired by the greens and whatever they can convince the federal court’s 9th Circuit is in our interests. That is, the bill actually does mandate that a “climate emergency” be declared by the federal government when global greenhouse gas concentrations – which are not something which the bill or the United States can control and over which we have a decreasing influence each day – reach 450 parts per million. Which the bill’s authors knew would already be the case by the time the bill was adopted.

At that point President Obama, using powers he worked to craft and signed into law, would “direct all Federal agencies to use existing statutory authority to take appropriate actions…to address shortfalls” in achieving needed greenhouse gas reductions. Again, it isn’t in the U.S.’s power to bring global concentrations to any particular level, and even if we disappeared off the face of the earth no global warming computer model relied upon by the alarmist industry even says that it would detectably impact the climate.

But as we have been warning you in detail, this agenda transparently is not about GHG concentrations, or the climate.

It’s about what this provision would bring: almost limitless power over private economic activity and individual liberty for the activist president and, for the reluctant leader, litigious greens and courts that in this case would only have two choices. Those are follow the law, or declare it unconstitutional knowing the predilections of the appellate courts and what will very soon be Obama’s Supreme Court.

Louisiana Sen. David Vitter, a Republican, asked Obama’s EPA Administrator what measures this contemplates, and she refused to provide any examples. That could lead to debate, yielding public awareness. However, as Tapscott reasonably asked, “Would the president be empowered to do things like nationalize whole sectors of industry, ban coal use, restrict private automobile use, or whatever else the ‘emergency’ requires?”

Well, that’s the point. And after Obama is gone, just what this means won’t be up to the president any more, but the greens, their lawyers, and activist courts.