Sen. Debbie Stabenow, who is poised to take back the chairmanship of the Senate Agriculture Committee pending the outcome of a Georgia runoff, says she would make it a “top priority” to facilitate establishment of an agricultural carbon market.

During interviews before a mob of protesters stormed the Capitol, Democrats expressed confidence Wednesday that they would win control of the Senate, although the race in Georgia between GOP Sen. David Perdue and Democrat Jon Ossoff was still too close to call.

If Ossoff wins, the Senate will be split 50-50, and Vice President-elect Kamala Harris will be able to break ties once she takes office Jan. 20. Democrat Raphael Warnock was earlier declared the victor in his runoff with Georgia's other GOP senator, Kelly Loeffler, a Senate Ag member. 

Having control of the Senate will allow Democrats to decide which bills get considered on the floor and in committee, and make it significantly easier for President-elect Joe Biden to get his nominees confirmed and legislative priorities enacted.

Democrats also could use a legislative process under the Congressional Review Act to repeal some regulations implemented since August of the Trump administration.

“We certainly will be deciding ... what bills come to the floor, which is a dramatic difference, and as well as what bills are brought up before the committee,” Stabenow told a congressional pool reporter.

“As chair of the Agriculture Committee, we're going to lead an effort to create a voluntary climate exchange and ... climate climate policy for farmers and ranchers, and that's a top priority for me,” Stabenow said.

The Biden transition team is discussing the possibility of using USDA’s Commodity Credit Corp. to set up a carbon bank that could buy and sell ag carbon credits. Separately, Stabenow is co-sponsor of a bill called the Growing Climate Solutions Act that is aimed at accelerating carbon credit trading by authorizing USDA to certify verification services.

Arkansas Sen. John Boozman, who will become the top Republican on the Senate Ag Committee if Democrats control the Senate, has expressed some concerns about ag carbon trading, fearing it will primarily benefit the credit traders.

“We’re going to do all we can to work with them on every (policy) area that there is,” Boozman told Agri-Pulse. “On the other hand, whatever we are going to do is going to be governed by common sense and good science.”

But he said he expected to have the working relationship with Stabenow that former Chairman Pat Roberts, R-Kan., has had.

It’s unclear what regulations that Democrats could attack with the CRA process.

“The likelihood of the CRA being used did just go up,” says Daniel Pérez, senior policy analyst at the George Washington University Regulatory Studies Center. “The uncertainty is how much appetite a Democratic-controlled Congress is going to have to use the CRA.”

One rule published today and roundly criticized by environmental and science groups addresses the Environmental Protection Agency’s use of scientific data. EPA administrator Andrew Wheeler says it promotes the use of scientific transparency, but critics say it would limit the use of important data that could be used to support public health efforts.

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That rule, however, is a “housekeeping regulation,” according to EPA, and thus not subject to the CRA.

In addition, the Army Corps of Engineers has announced a new set of nationwide permits that authorize work in wetlands and waterways, but the wide variety of actions authorized by those permits could make CRA review unlikely.

“Congress has the ability to act under CRA on this rule, but there are also administrative actions that could be taken to get these rollbacks stopped,” said Jon Devine, leader of the Natural Resources Defense Council’s water policy team. “We will be working with the Biden administration on those actions.”

One obstacle to use of the CRA is the law’s provision that once a rule is rescinded, agencies are prohibited from issuing rules that are in “substantially the same form” as the disapproved rule, though the law does not define exactly what that means. The law also dos not allow Congress to pick and choose which parts of a rule to target.

Best estimates by experts are that any rules adopted on or after Aug. 21 are vulnerable to CRA review. Not included in that list are the Trump administration’s new “waters of the U.S.” definition, already the subject of multiple lawsuits in different federal courts, and its rewrite of National Environmental Policy Act regulations.

Pérez said he would be skeptical of anyone who is confident about which rules might garner Congress’s attention.

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