Today, EPA Administrator Stephen Johnson announced that EPA would respond to the Supreme Court global warming case, Massachusetts v. EPA, by issuing an Advance Notice of Proposed Rulemaking (ANPR) to solicit public comment on a range of complex issues. 

Before finalizing its response to the Court, EPA must figure out how recent statutory changes in EPA’s responsibility regarding fuel economy and renewable fuel standards would affect the setting of auto emission standards for carbon dioxide (CO2) and other greenhouse gases–a possible outcome of Mass v. EPA.

Above all, EPA must sort out how setting CO2 tailpipe standards might affect “many sources beyond just the cars and trucks considered by the Court, including schools, hospitals, power plants, aircraft, and ships.”

Indeed, as CEI and several of its free-market brethren explained in a recent amicus brief and in coalition letters to President Bush and Senator Dianne Feinstein, EPA regulation of CO2 from new cars and trucks under Section 202 of the Clean Air Act could compel the agency to regulate CO2 emissions from potentially hundreds of thousands of small- to mid-sized farms, factories, and buildings under the Act’s Prevention of Significant Deterioration (PSD) program–a result Congress clearly did not intend when, in 1970, it enacted Section 202, a provision dealing solely with emissions from new motor vehicles.

Congressional reaction to EPA’s decision to proceed with the “appropriate care and attention this complex issue demands” rather than “rushing” to regulate CO2, was predictable.

Senate Environment and Public Works Chairman Barbara Boxer (D-CA) stated:  ”For nearly eight years, this Administration has tried to duck its obligation to address global warming pollution. A year ago, the Supreme Court ruled that greenhouse gases are covered under the Clean Air Act. Now, instead of action, we get more foot-dragging.” 

Two quick comments. First, as a technical matter, EPA did not receive an official remand from the Court of Appeals, where the case originated, until September 14, 2007.  Second, and more importantly, it wasn’t until December or thereabouts that EPA began to understand the enormity of the regulatory burden it might inadvertently unleash by rushing to set CO2 standards for motor vehicles.

The first wake up call came from attorney Peter Glaser in testimony (November 8, 2007) before the House Committee on Oversight and Government Reform. The U.S. Chamber reinforced Glaser’s message in a December 12, 2007 open letter to Congress. The free market coalition also weighed in via the aforementioned letters to President Bush (Dec. 16, 2007) and Sen. Feinstein (Feb. 20, 2008).

You’d think by now Sen. Boxer would get it. Maybe she does. Maybe what really bugs her is that the Bush administration today narrowly avoided a public policy disaster. Just think, if EPA had rushed to set CO2 standards for new cars and trucks, the ensuing regulatory cascade could have given us the equivalent of a dozen Kyoto Protocols, yet without Sen. Boxer or any of her allies on the Hill voting for it or taking responsibility for the economic fallout.  It would all have been George Bush’s mess. How convenient for them!

Thanks to Administrator Johnson’s decision, Boxer can no longer pretend that Mass v EPA is just about minor tweaks in new-car fuel economy standards. If she wants to regulate auto emissions, she must also accept responsibility for the broader and heavier regulatory burdens this could impose on the U.S. economy. No wonder she’s irked!

Ed Markey (D-CA) responded flippantly to Johnson’s ANPR letter: “The ‘A’ in this document should stand for ‘absurd.’ … This cynical step by EPA to announce an ‘Advanced Notice of Proposed Rulemaking’ in the coming months should be seen for what it is: an “Aspirational Notice of Procrastinational Rulemaking’.” Markey has no excuse for spouting such drivel. He understands full well the regulatory morass EPA could create if it followed his advice, because Peter Glaser explained it to him in testimony just two weeks ago.