As recently as a week ago, environmental activists were still optimistic that legislation could pass by December. Now, some aren't so sure. "I think the chances are very low during this calendar year," says Robert Repetto, a senior fellow at the United Nations Foundation. "It's going to set the Copenhagen negotiations back enormously because nobody else is going to bite the bullet until they know what the U.S. is going to do."
Todd Stern, Obama's special envoy for climate change (who also served as Clinton's climate adviser), told reporters Tuesday that the administration wants to see "maximum possible progress" in Congress. "In the event that there's not domestic legislation done by the time of Copenhagen, we will negotiate with that in mind," he said.
But there may be an alternative, say activists. A nuclear option, so to speak: The Environmental Protection Agency could simply mandate cap and trade. Researchers at NYU Law School concluded in April that the executive branch could impose the policy under the Clean Air Act, which gives the EPA broad discretion to regulate air quality. The head of the Sierra Club reiterated the idea earlier this month as a possible end-run around Congress. That way, the United States could go into Copenhagen with actual clout while saving the legislative process for later. Sure, it would be tough politically. But otherwise, says Repetto, "Copenhagen is going to be a severe disappointment."