As the controversy over impeding U.S. climate legislation continues to simmer, one interesting recent development is the spotlight on two California EPA attorneys: Laurie Williams and Allan Zabel.

The N.Y. Times reported that the U.S. EPA has directed the pair to remove or to make changes to a YouTube video they posted which is critical of the cap-and-trade bills currently being tossed around in the legislative houses. (The video, apparently made in September, critiques the U.S. House of Representatives’ Waxman-Markey Bill [H.R. 2454 American Clean Energy and Security Act of 2009]. Currently, the U.S. Senate is debating its own version [S.1733 Clean Energy Jobs and American Power Act].)

According to the EPA, Williams and Zabel violated EPA ethical guidelines when they substantiated their views with their “20 years each working as attorneys at the U.S. Environmental Protection Agency” – thereby accenting the credibility of their “personal opinion” with their office.

For some, this issue is censorship thinly veiled in professional ethics. The American Bar Association (ABA) Model Rules of Professional Conduct, for instance, doesn’t prohibit political expression by lawyers. Rule 1.2(b) specifically states that representation doesn’t constitute an endorsement of political views. The ABA Code of Judicial Conduct does restrict a judge’s capacity for political expression under Rule 4.1(A)(2), in order to maintain the impartiality of the position. But should government attorneys shed their capacity for political expression? On the other hand, for government attorneys, the government is their client. You don’t see many lawyers publishing videos where they criticize their client.

In either case, Williams and Zabel’s criticisms of cap-and-trade will no doubt be capitalized on by opponents of climate legislation. This is unfortunate, because their criticisms – which are just the media’s latest recognition of the carbon tax vs cap-and-trade debate (“carbon fees with rebates”… does anyone still fondly remember the Liberal Green Shift Plan?) – do voice very legitimate concerns.

I take Williams and Zabel’s criticisms to be essentially: 1) carbon offsets provide a run-around hard cap-targets; 2) carbon offsets often have unintended consequences; 3) the price instability associated with implementing a cap-and-trade scheme prevents the promotion of the desired innovation. Obviously, where the goal of the legislation is to curb carbon emissions and to shift to alternative energy, these are bad.

But, are their criticisms of the Waxman-Markey cap-and-trade scheme, say… equally applicable to that of Kerry-Boxer? With respect to at least one point – offsets – yes, they are a potential problem. But are they an intractable one? Both bills provide mechanisms that attempt to limit the potential unintended consequences of offsets. (i.e. – regulatory bodies to administer, and the ability to reverse offsets). This may or may not completely obviate the point, but it does address it. With respect to price instability and innovation – that’s an economic argument that’s beyond my purview.

But I do know this: any hope of success at Copenhagen rests largely on the ability of the U.S. to pass strong climate legislation, and to thereby commit to hard targets. Most signs seem to indicate Kerry-Boxer will pass. Even if cap-and-trade wouldn’t achieve everything some think it needs to, at the very least it seems to be the first viable step.