endangerment finding

Sen. Baucus, I Salute You! OK, I Will Salute You If…

by Marlo Lewis on October 7, 2010 · 1 comment

in Global Warming

In a message titled, ”EPA WILL REGULATE GLOBAL WARMING IN STATES WITH OR WITHOUT AUTHORITY,” the ever-vigilant Maryam Brown of the Senate Republican Policy Committee reports:

As you likely saw, Senator Baucus [D-MT] said yesterday that he would strip U.S. EPA’s authority to regulate greenhouse gas emissions under the Clean Air Act: “That would put too much power into few hands.” (Source:  E&E News) Senator Baucus’s apprehension to EPA’s power over all activity is well placed.

On October 5th, EPA officials said that those states not cooperating come January 2nd would face a gap in permitting authority that could prevent sources from receiving the necessary permits.  [In plain English: If states don’t come along, the Obama EPA will hold up projects (and the jobs that go with) in your state.]  (Source:  BNA Daily)

Because these statements echoed states such as Texas’s fears that EPA has a “plan for centralized control of industrial development through the issuance of permits for greenhouse gases,” EPA issued a clarifying statement on October 6th: “EPA has a mechanism in place to ensure permitting can occur without disruption in any states that currently do not have authority to regulate GHG.”  [In plain English: Whether there is authority or not, the Obama EPA will regulate the states.] (Source:  BNA Daily)

Baucus’s opposition to EPA regulation of greenhouse gases is noteworthy for three reasons.

First, as E&E News observes, Sen. Baucus “is considered a key vote to obtain in order to pass any climate bill and a bellwether for many other moderate Democrats on the issue.” Second, Baucus voted against Sen. Lisa Murkowski’s resolution (S.J.Res.26) to overturn EPA’s Endangerment Rule — the trigger for a cascade of greenhouse gas regulation under the Clean Air Act. If he is a “bellwether,” then other opponents of S.J.Res. 26 may also have come to their senses and realize that Congress should not let EPA legislate climate policy.

Third, although Baucus may not acknowledge it, his “too much power into few hands” argument is tacit criticism of the Supreme Court’s ruling in Massachusetts v. EPA, which both authorized and pushed EPA to regulate greenhouse gases via the Clean Air Act. The Court authorized EPA to regulate greenhouse gases when it declared that “greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant’” (they don’t, as I explain here).

In addition, the Court pushed EPA to regulate greenhouse gases by pre-judging EPA’s endangerment proceeding. The Court held that EPA must make a positive finding of endangerment if it decides that “greenhouse gases cause or contribute to climate change” — as if climate change per se = endangerment. Since greenhouse gases by definition have a greenhouse effect, the Court left EPA only one alternative — declare that “the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming.” An impossible alternative for an agency that had been a certified member of the alleged “scientific consensus” for many years.

The key point regarding Mass. v. EPA, though, is that Sen. Baucus is almost uniquely qualified to rebut the claim that the Clean Air Act authorizes EPA to regulate greenhouse gases from new motor vehicles. During congressional deliberation on the Clean Air Act Amendments of 1990, Baucus  introduced legislation requiring EPA to do just that. As originally introduced on September 14, 1989, S. 1630, the Senate version of the 1990 Clean Air Act Amendments, contained a Section 216 on “Carbon Dioxide Emissions from Passenger Cars.” The provision would require the Administrator to establish tailpipe emission standards for CO2:

SEC. 216. (a) PROMULGATION OF REGULATIONS- The Administrator shall promulgate regulations providing for standards applicable to emissions of carbon dioxide from passenger automobiles (as defined in 15 U.S.C. 2001(2)). Such standards shall require that for model years 1995 to 2002, the average of such emissions from passenger automobiles manufactured by any manufacturer shall not exceed two hundred and forty two grams per mile, and for model year 2003 and thereafter, such average shall not exceed one hundred and seventy grams per mile.

However, the Senate declined to adopt that provision.  Another part of Baucus’s draft legislation, Title VII of S. 1630, would have made “global warming potential” a basis for regulating ”substances manufactured for commercial purposes,” such as chlorofluorcarbons and halogens. Although Title VII declared reductions in CO2 and methane emissions as a national goal, it did not explicitly provide authority to regulate those gases, which are byproducts of combustion and agricultural activity rather than “substances manufactured for commercial purposes.”

In any event, the House-Senate conference committee ultimately rejected even that limited basis for global warming regulation while also dropping Title VII’s goal of reducing CO2 and methane emissions. The only trace of Title VII’s climate language that survived is Section 602(e) of Title VI, which directs the Administrator to “publish” the “global warming potential”of ozone-depleting substances. To ensure that trigger-happy regulators would not go off half-cocked, the phrase “global warming potential” is immediately followed by this admonition: “The preceding sentence shall not be construed to be the basis of any additional regulation under [the CAA].”

So with the possible exception of Rep. John Dingell (see pp. 65-66 of this committee print), who chaired the House-Senate conference committee on the 1990 Clean Air Act Amendments, probably nobody on Capitol Hill knows better than Sen. Baucus that Congress never authorize EPA to regulate greenhouse gases for climate change purposes. Baucus tried to persuade the Senate to approve greenhouse gas emission standards for new motor vehicles — and failed. House and Senate conferees also rejected the other greenhouse gas regulatory provisions he had proposed. A lawmaker doesn’t forget stuff like that!

And now, 20 years later, Baucus is willing to break ranks with his own party leadership and incur the wrath of the green establishment because EPA is amassing powers that, in the last major re-write of the Clean Air Act, he tried and failed to confer on the agency via legislation. Sen. Baucus, I salute you! OK, I will salute you if you match your brave words with action and do something to stop EPA!

The Court in Mass. v. EPA ignored its own better judgment: “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio [by its silence] to enact statutory language that it has earlier discarded in favor of other language.” INS v. Cardozo-Fonseca, 480 U.S. 421, 442-43 (1983) It is not too late to correct the Court’s error. If Sen. Baucus is indeed a bellwether, that correction may not be long in coming.

Motion to Stay Makes Strong Case Court Should Overturn EPA Global Warming Rules

by Marlo Lewis on September 22, 2010 · 3 comments

in Global Warming, Legal

Last Thursday (September 16, 2010), three groups, each led by the Coalition for Responsible Regulation (CRR), filed motions with the D.C. Circuit Court of Appeals to “stay” (put a hold on) the Environmental Protection Agency’s recently finalized greenhouse gas regulations.

The EPA regulations at issue are:

  1. The Endangerment Rule, which finds that greenhouse gas (GHG) emissions endanger public health and welfare, thereby obligating EPA to develop and adopt GHG emission standards for new motor vehicles.
  2. The Tailpipe Rule, which, per the Endangerment Rule, establishes first-ever GHG emission standards for new motor vehicles.
  3. The Triggering Rule, which holds that when the Tailpipe Rule takes effect (Jan. 2, 2011), “major” GHG emitting facilities will be “subject to regulation” under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program.
  4. The Tailoring Rule, which amends the PSD and Title V definitions of “major emitting facility” to avoid the “absurd result” of EPA and State environmental agencies having to process an estimated 41,000 PSD permits and 6.1 million Title V permits every year.

The groups filing the motions are: (1) a coalition of business associations led by the National Association of Manufacturers; (2) the State of Texas; and (3) a coalition of public policy advocates. The industry group is asking the Court to stay the Endangerment Rule, the Triggering Rule, and the Tailoring Rule, although not the Tailpipe Rule. Texas and the advocacy groups ask for a stay on all four regulations pending the Court’s review and decision to uphold or vacate the rules.

One point the motion makes is unarguable. Granting a stay can cause no harm to public health, even if one assumes global warming is a big problem. After all, EPA itself estimates that the Tailpipe Rule — the only rule for which environmental effects are estimated — would avert less than 1/100th of a degree Fahrenheit of global warming by 2100. Thus, if the Tailpipe Rule survives judicial scrutiny, delaying its implementation by six months to a year would have no discernible environmental impact. Besides, the stay would not affect the National  Highway Traffic Safety Administration’s (NHTSA) recent revision of fuel economy (CAFE) standards, and the overwhelming lion’s share of emission reductions required by the Tailpipe Rule actually comes from the new fuel economy regulations.

In contrast, the motions argue, EPA’s rules are already harming the economy. The dubious legal basis of both the Tailoring Rule and EPA’s efforts to bully States into immediately amending their permit programs ”now impose a terrible uncertainty tax on our struggling economy, as no business is able to make plans or investments in reliance on a regulatory scheme so clearly at odds with the plain language of the Act.” Businesses and State permitting agencies will incur additional losses if they make investments based on EPA’s rules and the rules are subsequently overturned. Best to put the regs on hold until the Court rules on their legal bona fides.

The Competitive Enterprise Institute (CEI) is a party to the advocacy group motion, which makes a powerful case that the regulations should be stayed and, ultimately, overturned. Lest anyone suspect that I’m tooting my own horn, I had absolutely no role in either developing or drafting the motion.

Big Picture

As can be surmised from the description above, EPA’s four rules are interdependent. The Endangerment Rule authorizes and, indeed, compels EPA to establish GHG emission standards for new motor vehicles. The emission standards, promulgated via the Tailpipe Rule, make GHGs subject to regulation under PSD and Title V, according to the Triggering Rule. To avoid administrative paralysis, economic disruption, and political backlash, the Tailoring Rule exempts all but the largest GHG emitters from PSD and Title permitting requirements over the next six years, raising from 100/250 tons per year to 75,000/100,000 tons per year the cutoff for regulation as a “major” emitting facility.

This custer of regulations is a classic case of bureaucratic self-dealing. As discussed elsewhere, EPA has positioned itself to determine the stringency of fuel economy standards for the auto industry, set climate policy for the nation, and even amend provisions of the Clean Air act—powers Congress never delegated to the agency. The Endangerment Rule is both trigger and precedent for sweeping policy changes Congress never approved. America could end up with a pile of greenhouse gas regulations more costly than any climate bill or treaty the Senate has declined to pass or ratify, yet without the people’s representatives ever voting on it. Overturning EPA’s GHG rules is a constitutional imperative.

The Arguments

The motion to stay advances new arguments — or improved versions of familiar arguments — for overturning each of the four EPA rules. The following sections summarize and excerpt some of the motion’s key insights.

EPA Outsourced Its Endangerment Judgment

Section 202 of the Clean Air Act requires the Administrator to determine the dangerousness of air pollution from motor vehicles based on her “judgment.” Instead, the motion points out, quoting EPA’s Endangerment Rule:

“the Administrator … rel[ied] on the major assessments of USGCRP, IPCC and NRC as the primary scientific and technical basis of her endangerment decision.” 74 Fed. Reg. at 66,510.14
EPA specifically declined to undertake “a new and independent assessment,” id. at 66,511, preferring to “plac[e] primary and significant weight on these assessment reports in making her decision on endangerment.” Id.

Which means:

. . . the only “judgment” EPA really made is that IPCC can be trusted to have made the endangerment assessment required by the Act. But the Act does not authorize entities other than EPA to make that assessment. See, e.g., U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004) (“[F]ederal agency officials … may not subdelegate to outside entities—private or sovereign—absent affirmative evidence of authority to do so.”).

In effect, EPA asks the Court and the American people to trust that the IPCC did its job objectively, adhering to U.S. Government standards of scientific integrity. “But neither this Court nor the interested public can determine whether IPCC in fact did so, because the innumerable choices made by its many authors are not in the record.” The Climategate emails reveal instances of behavior inconsistent with U.S. information quality standards, such as Climatic Research Unit Director Phil Jones vowing to keep peer-reviewed research contrary to his views out of the next IPCC report “even if we have to redefine what the peer reviewed literature is.”

Bottom line: The Endangerment Rule embodies “a scientific judgment made by IPCC, and then adopted by EPA, not supported by any record that this Court can review. This is error.”

EPA Fails to Make the Judgment Required by Sec. 202

“Endangerment,” the motion observes, “is not a scientific term with defined endpoints. It is not an objective measure, like the boiling point of water, but a value judgment, like ‘bad.’ And so before EPA finds ‘endangerment,’ it first must define it.” In other words, EPA must explain its judgment in terms of climate-related metrics like temperature, precipitation, or wind speed, such that the public can understand which changes in climatic variables constitute endangerment, and which do not. “EPA has failed to do so.”

To clarify this point, the motion compares EPA’s  endangerment finding for motor vehicle GHG emissions with the agency’s 1973 endangerment finding for vehicular lead emissions. In the earlier rule, EPA provided quantitative information relating lead emissions to atmospheric concentrations, the latter to blood lead levels, and blood levels to brain function. In addition, EPA analyzed how regulation of lead in gasoline would reduce atmospheric concentrations, reduce lead levels in blood, and, thus, improve public health. Thus, “By the end of the rulemaking, EPA had fully explained all of the choices it made along the path of converting available scientific knowledge about lead toxicology and exposure into a policy-based finding of endangerment from automotive lead emissions sufficient to justify regulation, and allow—and survive—judicial review.”

In contrast, EPA “jumps from the tautology that ‘greenhouse gases cause a greenhouse effect’ to ‘greenhouse gases endanger public health and welfare’ sufficient to warrant exactly the level of GHG reductions that happen to result from NHTSA’s imposition of the CAFE standards required by the Energy Policy and Conservation Act.” The motion continues:

It is as though EPA, in Ethyl [Corp. v. EPA, 541 F. 2d1, 1976], were defending a rule to ban leaded gasoline because lead is a poison at some unknown dose; cars burning leaded gasoline can emit lead, which has some unknown effect on atmospheric lead concentrations; and banning leaded gasoline would yield some unknown but trivial reduction in atmospheric lead levels, possibly mitigating by some unknown (but at best trivial) degree the unknown adverse effects that may result from atmospheric lead, although it is very, very possible that the ban would accomplish absolutely nothing at all.

“If anything,” the motion comments, “EPA should face a far greater burden to explain its policy choices here than it did in Ethyl. Lead is strictly a poison, whereas carbon dioxide is a natural component of clean air, ingested by all plants and exhaled by all animals. Life on Earth depends on the very ‘danger’ that EPA is trying to prevent.” Carbon dioxide is not only plant food, it also helps keep the Earth habitably warm.

In short, “An endangerment finding under Section 202(a) does not simply identify a health and welfare risk, as EPA contends; it also establishes the criteria that will inform whether the emission standards adopted to address that risk are rational. . . . EPA here failed to do so, first by rubber-stamping the IPCC’s findings instead of making its own assessment of the evidence, and then by disavowing any obligation to explain the various policy choices it made to reach its ultimate judgment and regulatory response.”

EPA’s Assessment of the Scientific Record Is Logically Flawed

Quoting (or parroting) the IPCC, EPA argues that it is “extremely unlikely” (less than a 5% probability) that the warmth of recent decades can be explained without “external forcing” by greenhouse gas emissions. But this conclusion is inconsistent with other IPCC statements. The IPCC acknowledges three potential drivers of climate change: (1) changes in incoming solar radiation (e.g. due to changes in the Earth’s orbit or the Sun); (2) changes in reflected solar radiation (e.g. due to changes in low-level cloud cover); and (3) changes in outgoing longwave radiation (e.g. due to changes in greenhouse gas concentrations). According to the IPCC, scientific understanding of the Sun’s role in climate change is “low” and there is “significant uncertainty” with regard to cloud behavior and reflectivity. If there is significant uncertainty about two of the three main drivers, it is impossible for EPA — or the IPCC — to be 95% certain which is in the driver’s seat. In the motion’s words:

EPA cannot, and does not, explain how its 95% certainty is justified on the record. There cannot simultaneously be both “significant uncertainty” about primary climate drivers and 95% certainty that anthropogenic GHGs are causing any observed warming, yet EPA concludes there is. This fails even minimal standards of rationality.

EPA’s Administrative Record Fails to Establish Any Non-Trivial Benefits from the Tailpipe Rule

Citing Ethyl Corp. (541 F.2d at 31 n. 62), the motion argues that an administrative agency’s regulatory actions should “fruitfully” attack the problem being addressed. Yet, by EPA’s own admission, the Tailpipe Rule would produce imperceptible benefits, reducing projected global warming by 0.006-0.015°C and projected sea-level rise by 0.06-0.14 cm in 2100.

EPA’s GHG Tailpipe Limits Accomplish No Public Benefit (If Any) that NHTSA’s CAFE Standards Do Not Already Accomplish

About 95% of all GHGs emitted by motor vehicles is carbon dioxide (CO2) from fossil fuel combustion. As EPA’s Tailpipe Rule acknowledges (p. 25327), there is a “single pool of technologies . . .  that reduce fuel consumption and thereby reduce CO2 emissions as well.” Unsurprisingly, the motion argues, “The [new] CAFE standards and EPA’s Tailpipe Rule are virtually identical, with irrelevant differences in how the two standards address air conditioning.”

The case law is not favorable to agencies duplicating the regulations of other agencies. Alas, the Tailpipe Rule is not merely redundant, it also has “profound and pernicious effects” on the economy, if, as EPA contends, it subjects  millions of small stationary sources to Clean Air Act permitting requirements. In sum:

There is no rational basis for EPA to promulgate mobile source rules that do nothing more than reiterate other, independently effective legal requirements, and that offer no added environmental benefit but impose far-reaching and unintended costs on a source population (stationary sources) not even considered in the Endangerment Finding assessment.

The Tailoring Rule Is an Illegal Solution to a Legal Problem of EPA’s Own Creation

This is the most original part of the motion’s argument. To obtain a PSD permit to build or modify a “major” stationary source, the applicant must demonstrate the facility’s compliance with “best available control technology” (BACT) standards. EPA reads Section 165(a)(4) of the Clean Air Act as requiring BACT compliance and PSD permitting for major sources of almost any regulated air pollutant.** Since the Tailpipe Rule makes GHGs regulated air pollutants, major stationary sources of GHGs are subject to PSD and BACT, EPA reasons.

To reach this conclusion, however, EPA had to ignore statutory context. Sec. 165(a)(4) states:

No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless . . . — the proposed facility is subject to the best available control technology for each pollutant subject to regulation under this chapter emitted from, or which results from, such facility [emphasis added].

In the foregoing, “this chapter” means the Clean Air Act. EPA reads the phrase “each pollutant subject to regulation under this chapter” apart from the qualifying and limiting phrase, ”in any area to which this part applies.” The “part” in question is Part C (Prevention of Significant Deterioration of Air Quality), and the “area” to which it applies is an attainment area. Part C is clearly distinguished from Part D, which addresses permitting requirements in non-attainment areas.

The distinction between attainment and non-attainment areas presupposes, and has no meaning apart from, the adoption of national ambient air quality standards (NAAQS) for the pollutant of concern. Properly construed, Sec. 165(a)(4) creates BACT and PSD obligations only in attainment areas based on a prior NAAQS rulemaking. Since there are no NAAQS for GHGs, there are no GHG attainment areas, hence no areas where Part C BACT and PSD requirements apply to GHG emitting facilities.

Since the Tailpipe Rule does not trigger BACT and PSD for stationary sources, there is also no need for EPA to play lawmaker and “tailor” — that is, amend– the PSD applicability thresholds. Similarly, because “Title V is intended solely to codify otherwise applicable requirements in permits issued to stationary sources,” and stationary sources have no new obligations as a consequence of EPA’s decision to regulate mobile source GHGs, there is no necessity to amend the Title V applicability threshold.

The motion sensibly concludes:

Having applied the Act to a “pollutant” under programs never intended for that “pollutant,” EPA is confronted with the need to undo the “absurd” results that follow by outright defiance of crystal-clear provisions of the statute, those setting forth the applicability thresholds. The far better—and only legal—choice instead is to avoid manufacturing overbreadth in the first place.

(If this argument is correct, then EPA bears a greater responsibility for Massachusetts v. EPA’s “legacy of absurd results” than I previously supposed.)

The Triggering and Tailoring Rules Treat the States as Vassals, Not As the Equal Sovereigns Contemplated by the Clean Air Act

EPA assumes it can simply command States to incorporate PSD permitting for GHGs in their State Implementation Plans (SIPs), or face imposition of an EPA-crafted Federal Implementation Plan (FIP). Not so, the motion argues:

Section 110(a)(2)(C) requires each State’s permit program to mandate permits only for “modification and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in parts C and D….” 42 U.S.C. § 7410(a)(2)(C). EPA has no basis, then, to disapprove a State’s permit program for failing to govern emissions of a pollutant for which there is no NAAQS.

EPA assumes that the Tailpipe Rule and Tailoring Rules will or at least should automatically revise State permitting programs and the SIPs governing them.  In so doing, EPA erroneously views the States as vassals, because “no sovereign can delegate to another the ability to make its laws. The State must by some affirmative act ratify any changes in pollutants and applicability thresholds incorporated from federal laws before they become effective.”

EPA’s rush to incorporate GHGs into State permitting programs also runs afoul of procedural requirements. Section110 of the Clean Air Act “allows at least 18 months after proper adoption of new SIP expectations before requiring their implementation by the States.” In addition, Section 166 allows States 21 months to submit a plan revision following an EPA rulemaking calling for the addition of new pollutants in the PSD program. “EPA, of course, has undertaken no such rulemaking, nor allowed any time for each State to respond.” Indeed, one of the rules EPA recently proposed to bypass the normal SIP revision process would “give States perhaps three weeks in December to respond to a call for revisions to their SIPs, or face a construction ban on January 2, 2011.”

A Stay Would Allow for Rational Policy Development

The House passed a cap-and-trade bill in June 2009, but in 2010 cap-and-trade died in the Senate. Senators mounted an unsuccessful effort to overturn EPA’s Endangerment Rule, but all 41 Republicans and six Democrats voted for the resolution of disapproval. “The 111th Congress evidently will adjourn unable to either ratify the current state of affairs or change it, but the 112th may be rather more willing to announce an opinion on behalf of the electorate. A stay would allow for the possibility that Congress finally will state its intentions to regulate GHGs under the Clean Air Act, or not, so that this Court will not have to speak for it.” ‘Nuff said.

** The Clean Air Act prescribes separate and tougher permitting requirements for major sources of toxic air pollutants and criteria air pollutants in areas failing to meet national ambient air quality standards.

TCEQ to EPA: Don’t Mess with Texas

by Marlo Lewis on August 6, 2010

in Global Warming, Legal

In a blistering letter published earlier in the week, the head of Texas’s environmental agency and the State’s attorney general told the U.S. Environmental Protection Agency (EPA): ”Texas has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas regulations.”

The letter, by Texas Commission on Environmental Quality (TCEQ) Chairman Bryan Shaw and Attorney General Gregg Abbott, comes hard on heels of EPA’s denial of 10 petitions (including one from the State of Texas) to reconsider EPA’s endangerment rule. That rule — the agency’s response to the Supreme Court’s 5-4 decision in Massachusetts v. EPA – is both trigger and precedent for potentially dramatic and far-reaching Clean Air Act restrictions on fossil energy production and use.

More pertinently, Shaw and Abbott sent their letter on August 2, 2010, the deadline EPA had set in its Final Tailoring Rule (p. 31582) for States to explain how they plan to apply Clean Air Act permitting programs to stationary sources of greenhouse gases. Instead, the Texas officials all but told EPA to go jump in the lake. 

Tailoring Absurdity

EPA adopted the Tailoring Rule to fix a problem of its own making. By adopting the endangerment rule, EPA obligated itself to establish greenhouse gas emission standards for new motor vehicles. The standards make carbon dioxide (CO2) a “regulated air pollutant,” which in turn makes any “major stationary source” of CO2 “subject to regulation” under the Clean Air Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. 

The problem is that literally millions of  hitherto unregulated entities qualify as “major” sources of CO2 under those programs. The “major” source “applicability threshold” for PSD is a potential to emit 250 tons per year (tpy) of a regulated air pollutant. The threshold for Title V is even lower — a potential to emit 100 tpy. Whereas only large industrial facilities emit bona fide air pollutants in those quantities, millions of small entities never before subject to Clean Air Act permitting requirements — big box stores, office buildings, apartment complexes, restaurants, hospitals, schools — emit CO2 in the threshold amounts.

Applying the Clean Air Act to greenhouse gases thus produces what EPA itself describes as “absurd results.” For example, EPA and its State counterparts would have to process an estimated 41,000 PSD permits per year (up from 280) and 6.1 million Title V operating permits per year (up from 15,000). The ensuing “permit gridlock” would clog up environmental enforcement, stifle new construction, and force millions of firms to either operate illegally or close down. All on President Obama’s watch; all in the midst of a deep recession.

Rather than draw the reasonable conclusion that Congress did not intend to regulate greenhouse gases via the Clean Air Act, EPA decided that Congress must have intended for the agency to ”tailor” — that is, amend — the Act so the agency can regulate greenhouse gases without wrecking the economy. So, while the law specifies 100/250 tpy as the applicability thresholds for the permitting programs, the Tailoring Rule sets the cutoff at 100,000 tpy over the next two years and at not less than 50,000 over the next six years.

In addition, under the Tailoring Rule, modifications to an existing source won’t be considered “significant” — that is, won’t trigger the PSD process — unless the changes increase emissions by 75,000 tpy.

The Texas environmental chairman and AG aren’t buying it:

You have declared that EPA’s decision to enact automobile tailpipe emission limits for greenhouse gases pursuant to Title II of the federal Clean Air Act renders such gases immediately ”subject to regulation” for all purposes under the Act, including Title I Prevention of Significant Deterioration (PSD) pre-construction permitting program  and the Title V operating permit program. Simultaneously, however, you recognize that permitting greenhouse gases under the Act is “absurd.” . . . We agree.

They continue:

In order to avoid the absurd results of EPA’s own creation, you have developed a “tailoring rule” in which you have substituted your own judgment for Congress’s as to how deep and wide to spread the permitting burden.

And a bit later:

Instead of acknowledging that congressionally set emission limits [applicability thresholds] preclude the regulation of greenhouse gases, you instead re-write those statutorily-established limits . . . .

Problem Unsolved

Okay, now we get to the meat of the matter. PSD and Title V are mostly administered by States, not by EPA, and most State Implementation Plans (SIPs) define “major” emitting facility exactly as the Clean Air Act does. This means that even if the Tailoring Rule shields small entities from PSD and Title V regulation by EPA, it would not shield them from regulation by State agencies. EPA discussed this problem in its Proposed Tailoring Rule (p. 33542). ”Virtually all of [the EPA-approved SIPs] establish the PSD permitting threshold at the 100/250-tpy level,” EPA noted. Indeed, ”a few States have adopted lower permitting threshold levels.” In addition, “virtually all EPA-approved SIPs establish the significance level” for modifications triggering PSD “at zero” emissions in the case of previously unregulated air pollutants — not at 10,000 tpy, as EPA initially proposed, much less at 75,000 tpy, as the Final Rule stipulates.

Initially, EPA proposed to withdraw federal approval from those portions of SIPS incorporating the older thresholds and significance levels. This would mean, however, that the lower thresholds would “remain on the books under State law, and sources therefore remain subject to them as a matter of State law” (Proposed Tailoring Rule, p. 55343). In short, the regulatory nightmare would continue. For further discussion, see Peabody Energy’s comment on the Proposed Tailoring Rule.

Of course, States have the option to revise their SIPs and amend their clean air laws. But that could take years. Thus, notwithstanding EPA’s “tailoring,” small entities would find themselves “subject to regulation” under State PSD and Title V requirements on January 1, 2011, when the agency’s greenhouse gas tailpipe emission standards go into effect. As the Final Tailoring Rule observes, “Commenters stated that States would need to undertake a regulatory and/or legislative process to change the threshold in their state laws which they could not complete before the laws would otherwise require issuance of operating permits to GHG sources” (p. 31583).

Semantics Rule?

So what is EPA’s solution? Instead of changing the definition of “major stationary source,” EPA is changing the definition of “subject to regulation.” The agency, “by interpretation,” now defines “subject to regulation” as not including a “major source” of greenhouse gases unless the source has a potential to emit 100,000 tpy on a CO2-equivalent basis. EPA crows that “we find no substantive difference” between how the initially-proposed rule and how the final rule “tailors” the permitting requirements. EPA says that States similarly, “by interpretation,” can redefine “subject to regulation,” allowing them to exempt small sources from PSD and Title V without changing their SIPs or laws: 

Whether we add [higher] GHG thresholds directly to the definition of “major source” (as we proposed), or alternatively, expressly add and define the term “subject to regulation” [so that it only applies to sources emitting at least 100,000 tpy], both approaches revise the definition of “major source” to implement the Tailoring Rule. Accordingly, we adopt the later approach to facilitate state implementation of the final rule through an interpretation of existing state part 70 programs.

If you are confused as to how redefining “subject to regulation” can produce the same substantive result as redefining “major source” yet not similarly require States to change their SIPs or laws, you are not alone. It’s this attempt to turn law into a semantic game that the Texas officials refuse to play.

They write:

In the Tailoring Rule you have asked TCEQ to report to you by August 2, 2010 whether it would “interpret” the undefined phrase “subject to regulation” in TCEQ Rule 116.12 consistent with the newly promulgated definition of EPA Rule 51.166 in all its specifics and particulars. . . .In other words, you have asked Texas to agree that when it promulgated its air quality permitting program rules for pollutants “subject to regulation” in 1993, that Texas really meant to define the term “subject to regulation” as set forth in the dozens of paragraphs and sub-paragraphs of EPA Rule 51.166, first promulgated in 2010.

TCEQ Rule 116.12 was last amended in 2006. It “adopts” the Clean Air Act “by reference” — but only as the Act existed at the time of adoption. To adopt subsequent changes made by EPA, TCEQ would have to amend Rule 116.2 through a formal rulemaking process. Adopting such changes by mere act of “interpretation” would delegate more authority to EPA than the Texas Constitution allows.  

In addition, the Texas officials argue, “TCEQ is also precluded from adopting EPA’s newly-minted definition of “subject to regulation” by the “express terms of the Texas Government Code, which requires public notice of agency rulemaking.” They explain:

When the TECQ promulgated Rule 116.12 in 1993, or even when it last amended the rule in 2006, it had no intention of enacting a permitting program for greenhouse gases. Consequently, TCEQ had no reason to (nor did it) give public notice of any such intent. Obviously, Texans concerned with greenhouse gas permitting could not have known to participate and comment on the decision to require permits for pollutants “subject to regulation” in 2006, when the EPA first discovered greenhouse gases were “subject to regulation” in 2010. It should go without saying that the nearly infinite expansion of Texas’ permitting programs to include greenhouse gases with no state-level rulemaking at all would not satisfy Texas or federal law requiring notice and an opportunity to be heard.

Of course, one could say that the whole point of the Supreme Court’s decision in Massachusetts v. EPA, which pushed the agency to issue an endangerment rule, and the ensuing cascade of CO2 controls was to bypass the democratic process and confront the public with regulatory fait accompli.

Another Bite at the Apple?

It will be interesting to see how all this plays out. If Texas sticks to its guns, EPA may simply take over the Texas PSD program, in whole or in part, through a federally-imposed Federal Implementation Plan (FIP). Florida, for example, told EPA it could not make the regulatory changes in time, so EPA would just have to take over the Florida program. EPA reportedly is working on a “backstop rule” authorizing the agency to take over State permitting of greenhouse gases on a temporary basis (Environmental NewsStand, August 5, 2010, subscription required).

However, what if Texas still refuses to cooperate? Would EPA sue? Such a case might work its way up to the Supremes. The Court might then have to face the core issue it ducked in Mass. v. EPA – whether Congress intended for EPA to regulate greenhouse gases under the Clean Air Act as a whole, including PSD, Title V, and the national ambient air quality standards (NAAQS) program. The Court would have an opportunity to reconsider Mass. v. EPA in light of the absurd results to which it has led. A long shot — but a consummation devoutly to be wished.

Brava, Sen. Murkowski

by Marlo Lewis on June 14, 2010

in Global Warming

Last Thursday, by a vote of 53-47, the Senate rejected S.J.Res.26, Alaska Sen. Lisa Murkowski’s resolution of disapproval to overturn EPA’s endangerment rule.

Although Sen. Murkowski fell four votes short of achieving a legislative victory, she nonetheless won an important political victory. 

During the past four-plus months, despite vicious attacks by eco-pressure groups and preemptive cringing by the subsidy dependent auto industry, Sen. Murkowksi worked patiently, calmly, and indefatigably to clarify the real issues, which are: (1) “The sweeping powers being pursued by EPA are the worst possible option for reducing greenhouse gas emissions”; (2) “politically accountable members of the House and Senate, not unelected bureaucrats, must develop our nation’s energy and climate policies”; and (3) ”those policies must be able to pass on their own merits, instead of serving as a defense against ill-considered regulations.”

All 41 Republican Senators and six Democrats voted to stop EPA from ‘enacting’ controversial global warming policies through the regulatory back door. This means Democratic leaders have become the Party of Endangerment — the party taking ownership of the regulatory consequences of EPA’s endangerment rule; hence the party taking responsibility for the economic fallout.

By denying President Obama bipartisan cover for greenhouse gas regulation under the Clean Air Act, Sen. Murkowski has made EPA’s endangerment rule a political liability for Democrats and a political asset for Republicans in an election year.

That should increase the pressure on moderate Dems and Republicans alike to distance themselves from Democratic leaders and eschew cap-and-trade, which, like EPA’s regulations, would increase consumer energy prices, killing jobs and growth.

Sen. Murkowski’s opening and closing statements in the floor debate clearly and cogently explain how the endangerment rule imperils our economy and representative democracy. Below are some noteworthy excerpts.

Excerpts from Sen. Murkowski’s Opening Statement

The sweeping powers being pursued by the EPA are the worst possible option for reducing greenhouse gas emissions. . . .It would amount to an unprecedented power grab, ceding Congress’ responsibilities to unelected bureaucrats, and move an important debate from our open halls to behind an agency’s closed doors.

* * *

The only similarity I see between the spill in the Gulf of Mexico and EPA’s regulations is that both are unmitigated disasters — one happening now, the other waiting in the wings if Congress fails to adopt this resolution.

* * *

No one is more aware of this uncomfortable fact [that EPA's regulatory net would expand by orders of magnitude] than the EPA itself. That’s why the agency has attempted to dramatically increase the thresholds for greenhouse gases in its so-called tailoring rule. Unhappy with the plain language of the Clean Air Act, the agency plans to lift its limits up to 1,000 times higher than Congress directed. It’s deeply disturbing that EPA did not accept that the Act is simply not structured for this task, and instead attempted to make it so by ignoring the plain language and unilaterally amending it.

* * *

I encourage my colleagues to think about the logic behind the tailoring rule. The EPA is asking us to accept that while greenhouse gases are not in the Clean Air Act, Congress clearly intended them to be regulated under it. At the same time, we’re expected to believe that while explicit regulatory thresholds are in the Act, Congress meant for EPA to ignore them.

* * *

To this day, the agency still has not provided anything close to a full projection of the economic impacts that its economy-wide climate regulations will have. There are two potential reasons why: the EPA either has no cost estimates, or knows they are too astronomical to calculate and release.

* * *

The problem is that BACT [best available control technology] remains completely undefined at this point. It could mean efficiency improvements, expensive add-on technologies, or even fuel-switching requirements. Over time, the EPA would have little choice but to impose all of those requirements and more, regardless of the consequences.

* * *

Again, it’s hard not to find this both surreal and deeply alarming. We need to be growing our economy, not paralyzing it.

* * *

This brings me to my final point: politically accountable members of the House and Senate, not unelected bureaucrats, must develop our nation’s energy and climate policies. And those policies must be able to pass on their own merits, instead of serving as a defense against ill-considered regulations.

* * *

Nor is it [S.J.Res.26] about fuel efficiency — the Department of Transportation is and has been in charge for 35 years, and we don’t need another agency and another standard thrown into the mix to do the same job . . . .The EPA does not need to take over this process, and it should not be allowed to do so under a law that was never intended to regulate fuel economy.

* * *

Bringing climate science, the oil spill, and fuel economy into this debate are attempts at misdirection — “green herrings” intended to convince members to oppose our resolution. But this debate has nothing to do with those topics. . . .It’s about maintaining the separation of powers between the legislative and executive branches, as our founding fathers intended, and rejecting an unprecedented overreach by the EPA into the affairs of Congress.

Excerpts from Sen. Murkowski’s Closing Statement

Most cynical are the efforts to link our resolution to the oil spill. That serves only to cheapen the horrible and ongoing tragedy in the Gulf of Mexico and distract from the reasons why 41 Senators sponsored this resolution. Here’s the real question: why is the EPA attempting to impose economy-wide regulations — regulations that will not help clean up or prevent future accidents — instead of focusing its resources on the spill?

* * *

We’ve heard that our resolution is anti-science. Some of our supporters agree with it [EPA's endangerment analysis], and some do not. The reality is that the science is what it is, and it is beyond the power of Congress to change. But this is an issue of the best way, and the most appropriate body, to respond to the conclusions being reached by members of the scientific community.

* * *

Threatening to disrupt our nation’s economy until we pass a bill by the slimmest of margins, regardless of its merits, won’t be much of an accomplishment. Nor is that approach worthy of the institutions and people we serve. It isn’t appropriate for a challenge of this magnitude. No policy that results from it will achieve our common goals or stand the test of time.

* * *

Today is the day for the Senate to take the threat of EPA climate regulations off the table once and fall all. . . .By passing our bipartisan resolution of disapproval resolution, we can return the debate over climate policy to its rightful home, here in Congress, where duly-elected representatives can represent the best interests of their constituents.

More Demagoguery from Sen. Boxer

by Marlo Lewis on June 10, 2010

in Global Warming

Sen. Boxer now compares Sen. Murkowski’s resolution to an attempt to repeal the Surgeon General’s famous report in 1964 linking cigarette smoking to cancer.

She ignores the fact that the Surgeon General’s report was purely an assessment of the medical literature. It had no legal force and effect. Indeed, the Surgeon General’s report did not even provide policy recommendations.

If EPA’s endangerment finding were simply one agency’s review of the scientific literature, the Senate would not have any business voting on it either. However, unlike the Surgeon General’s report, the endangerment finding is both trigger and precedent for policy changes potentially affecting millions of businesses and homes and trillions of dollars in cumulative GDP.

Congress never intended for the Clean Air Act to be a framework for climate policy, never voted for EPA to use the Act as such a framework, and never signed off on the far-reaching regulatory cascade the endangerment finding triggers.

Therefore it is entirely proper for the Senate to debate and vote on the ”legal force and effect” of the endangerment finding. Indeed, overturning the endangerment finding is a constitutional imperative.

Sen. Boxer’s Demagoguery Knows No Bounds

by Marlo Lewis on June 10, 2010 · 3 comments

in Global Warming

Sen. Boxer (D-Calif.) is now speaking against the Murkowski resolution (S.J.Res.26). Her demagoguery knows no bounds.

She asks us to imagine a hundred Senators, who are not scientists, who are not health experts, presuming to determine which pollutant is dangerous and which is not. “It is not our expertise, it is not our purview.” “It is ridiculous.” “It is the height of hubris.” “What are we going to do next, repeal the laws of gravity?” “Maybe we’ll say the Earth is flat and will argue that one too.” “We could pass a resolution that says there shouldn’t be any more rain, and then I guess there wouldn’t be any more rain.”

Boxer ignores — and conceals — the simple fact that the Murkowski resolution would overturn the “legal force and effect” of the endangerment finding, not its scientific reasoning or conclusions.

The resolution is a referendum not on climate science but on who shall make climate policy: Elected lawmakers who must answer to the people at the ballot box or politically unaccountable bureaucrats, trial lawyers, and activist judges appointed for life?

Boxer champions the endangerment finding because it empowers EPA to implement policies that she and other members of the greenhouse faction have been unable to secure the old fashioned way — by ratifying treaties and enacting laws. 

Opponents of S.J.Res.26 will do and say anything to avoid restoring political accountability to climate policymaking.

Auto Dealers Demolish White House/Auto Alliance Rationale for Opposing Murkowski Resolution

by Marlo Lewis on June 10, 2010 · 2 comments

in Global Warming

Today, the Senate will debate and vote on S.J.Res.26, Sen. Lisa Murkowski’s resolution of disapproval to overturn the legal force and effect of EPA’s endangerment finding, which is both trigger and precedent for sweeping policy changes Congress never approved.

The Obama Administration and the Auto Alliance strongly oppose S.J.Res.26, claiming that it would harm the auto industry by blocking implementation of the joint fuel economy/greenhouse gas emission standards rule that EPA and the National Highway Traffic Safety Administration (NHTSA) finalized in March.

The National Automobile Dealers Association (NADA) demolishes the Administration’s argument in a letter sent to U.S. Senators yesterday afternoon.

If Congress wants NHTSA to tighten fuel economy standards, the agency already has all the authority it needs under the 1975 Energy Policy and Conservation Act as modified by the 2007 Energy Independence and Security Act (EISA). NHTSA’s authority does not come from the Clean Air Act and in no way depends on EPA’s endangerment finding.

Under the EPA/NHTSA joint rule, three different agencies will set fuel economy standards — NHTSA, EPA, and the California Air Resources Board (CARB). Enactment of S.J.Res.26 would indeed block implementation of the rule. But that would benefit the auto industry by helping to “restore a single national fuel economy standard, with rules set by Congress.”

“Opponents of S.J.Res. 26 fail to explain how being regulated by three different fuel economy standards with three different sets of rules administered by three different agencies is more beneficial than a single national fuel economy standard,” the NADA letter points out.

The letter provides a detailed chart showing that there are important differences and inconsistencies between NHTSA’s fuel economy standards and EPA’s greenhouse gas emission standards, as well as inconsistencies between the federal standards and the CARB standards.

NADA’s letter concludes:

The EPA and CARB fuel economy standards in effect today have been foisted on the American people by bureaucratic fiat. It is extremely unlikely any Senator would even propose a three-different-fuel-economy standards framework, especially one filled with exemptions, lower standards for some, and conflicting policies, Passage of S.J.Res. 26 would partially correct this onerous and redundant policy.

Statement of Marlo Lewis on S.J.Res.26, Sen. Murkowski’s resolution to overturn EPA’s endangerment finding

by Marlo Lewis on June 8, 2010 · 2 comments

in Global Warming

On Thursday (June 10, 2010), the Senate will vote on Alaska Sen. Lisa Murkowski’s resolution of disapproval (S.J.Res.26) to overturn the U.S. Environmental Protection Agency’s finding that greenhouse gas emissions endanger public health and welfare.  

The endangerment finding is both trigger and precedent for sweeping policy changes Congress never approved.

Tomorrow, I will speak in support of S.J.Res.26 at an 11:00 a.m. Capitol Hill press conference hosted by Americans for Prosperity. My prepared statement follows.

Prepared Statement of Marlo Lewis

Sen. Murkowski’s resolution of disapproval would stop EPA from ‘enacting’ controversial global warming policies through the regulatory back door.

The endangerment finding is a classic case of bureaucratic self dealing. EPA has positioned itself to determine the stringency of fuel economy standards, set climate policy for the nation, and even amend provisions of the Clean Air act – powers Congress never delegated to the agency.

Worse, America could end up with a pile of greenhouse gas regulations more costly than any climate bill or treaty the Senate has declined to pass or ratify, yet without the people’s representatives ever voting on it.

The Murkowski resolution puts a simple question before the Senate: Who shall make climate policy — lawmakers who must answer to the people at the ballot box or politically unaccountable bureaucrats, trial lawyers, and activist judges appointed for life?

Because the endangerment finding dramatically expands EPA’s power, the agency fiercely opposes S.J.Res.26, depicting it as an attack on science.

That is nonsense. Although a strong case can be made that the endangerment finding is scientifically flawed, the Murkowski resolution neither takes nor implies a position on climate science.

The resolution would overturn the “legal force and effect” of the endangerment finding, not its reasoning or conclusions. It is a referendum not on climate science but on who should make climate policy.

Climate policy is too important to be made by non-elected bureaucrats. That ought to be a proposition on which all Senators can agree.

The importance of Thursday’s vote is difficult to exaggerate. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance.

Thank You CBD: Another Reason to Nix EPA Endangerment Finding

by Marlo Lewis on June 3, 2010 · 2 comments

in Global Warming

Twice during the past six months, the eco-litigators at the Center for Biological Diversity (CBD) have underscored the political necessity for Congress to overturn EPA’s endangerment finding.

Yes, that is very far from CBD’s intention. CBD is a fervent defender of the endangerment finding, the December 2009 rulemaking in which EPA concluded that greenhouse emissions endanger public health and welfare.

The endangerment finding compels EPA to establish greenhouse gas emission standards for new motor vehicles, which in turn makes carbon dioxide (CO2) a “regulated air pollutant”  under the Clean Air Act, which in turn makes ”major” stationary sources of CO2 ”subject to regulation” under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. CBD must be thrilled by the endangerment finding and the regulatory cascade it has triggered.

CBD wants EPA to follow through on all the regulatory commitments logically entailed by the endangerment finding and CO2′s new status as a “regulated air pollutant.” But that’s where things get dicey for President Obama and his congressional allies. Once the regulatory genie is out of the bottle, Obama officials may not be able to control it.

Even EPA acknowledges that applying the Act’s permitting programs to CO2 leads to “absurd results.” For example, EPA and its state counterparts would have to process 41,000 PSD permit applications per year (instead of 280) and 6.1 million Title V permits per year (instead of 14,700). The resulting administrative quagmire would paralyze environmental enforcement, slam the brakes on development, and force millions of firms to operate in legal limbo. A more potent anti-stimulus package would be hard to imagine. 

To avoid this red ink nightmare, EPA has issued a Tailoring Rule that exempts small CO2 emitters from the Act’s permitting programs for six years. However, nothing in the statute authorizes EPA to suspend or modify the permitting requirements. In reality, EPA’s Tailoring Rule is an amending rule. It’s anybody’s guess whether courts will uphold this breach of the separation of powers.

Even if they do, the endangerment finding will still endanger the U.S. economy and our constitutional system of separated powers and democratic accountability. Thank you, CBD, for bringing this peril to light!

Last December, CBD petitioned EPA to establish national ambient air quality standards (NAAQS) for greenhouse gases set below current atmospheric levels. CBD is only acting on the obvious implication of EPA’s assertion that endangerment comes from the “elevated concentration” of greenhouse gases in the atmosphere.

Why should Obama and congressional leaders worry? The Clean Air Act requires states to come into attainment with a primary (health-based) NAAQS within five or at most 10 years. Yet not even a global depression lasting several decades would suffice to lower CO2 concentrations from today’s level (390 parts per million) to the stabilization target (350 parts per million) demanded by CBD and its co-petitioners. Because EPA may not take compliance costs into account when establishing NAAQS, the endangerment finding sets the stage for eco-litigators to transform the Act into a de-industrialization mandate.  No elected official wants to take ownership of so crazy a policy. If CBD prevails, however, Obama and the Democrats — the Party of Endangerment — will be left holding the bag. 

Yesterday, CBD filed suit to overturn EPA Administrator Lisa Jackson’s reconsideration of her predecessor Stephen Johnson’s memorandum determining when a pollutant is “subject to regulation” under the PSD program. Jackson’s reconsideration held that a pollutant is subject to regulation not when EPA finalizes an emissions control rulemaking but when the rule takes effect. Since EPA’s greenhouse gas motor vehicle standards rule does not take effect until January 2011, Jackson concluded that EPA may not regulate greenhouse gases from stationary sources until then. CBD says EPA should have started already to regulate large emitters via PSD.

CBD’s lawsuit makes EPA regulation of greenhouse gases a real-time issue for this Congress, not just a post-election issue for the next Congress. It increases the pressure on Democrats to get the monkey off their back. If courts strike down Jackson’s reconsideration, they will be more likely to strike down the Tailoring Rule, which undeniably flouts statutory language. Courts will also be more likely to look favorably on CBD’s NAAQS petition, which simply demands that EPA, having made an endangerment finding, follow the letter of the law.   

Democratic Senators who don’t want to bet their political futures on EPA’s ability to control the cascading effects of greenhouse gas regulation under the Clean Air Act – or who simply believe that climate policy is too important to be made by non-elected bureaucrats, trial lawyers, and activist judges appointed for life – will soon get their opportunity.

On June 10, the Senate will vote on a resolution of disapproval (S.J.Res.26), sponsored by Alaska Sen. Lisa Murkowski, to nullify the legal force and effect of EPA’s endangerment finding. If enacted, S.J.Res.26 will:

  1. Avert the threat of an administrative meltdown under the PSD and Title V programs.
  2. Avert the threat of sky-is-the-limit, money-is-no-object regulation of greenhouse gases via the NAAQS program.
  3. Avoid the need for EPA to play lawmaker and ’amend” a statute it is supposed merely to administer.

Most importantly, enacting Sen. Murkowski’s resolution will ensure that the big decisions about the content and direction of national policy are made by the people’s representatives, as the Constitution requires.

Did Congress Intend for EPA to Regulate CO2 through the Clean Air Act?

by Marlo Lewis on June 1, 2010 · 1 comment

in Global Warming

On June 10, the Senate will debate and vote on S.J.Res.26, a resolution of disapproval sponsored by Republican Senator Lisa Murkowski of Alaska to stop EPA from ‘enacting’ controversial global warming policies through the regulatory back door.

S.J.Res.26 would overturn the legal force and effect of EPA’s endangerment finding, a December 2009 rulemaking in which the agency concluded that greenhouse gas emissions endanger public health and welfare. The endangerment finding is both trigger and precedent for sweeping policy changes Congress never approved. America could end up with a bundle of greenhouse gas regulations more costly and intrusive than any climate bill or treaty the Senate has declined to pass or ratify, yet without the people’s representatives ever voting on it.

Of course, not everbody sees it that way. In a recent letter urging Senators to vote against the Murkowski resolution, former EPA Administrator Russell Train contends that Congress did intend for EPA to regulate greenhouse gases through the Clean Air Act. His argument may be summarized as follows: 

  1. Congress enacted the Clean Air Act.
  2. The Act requires EPA to regulate air pollutants which in its judgment endanger public health or welfare.
  3. EPA has determined that greenhouse gas emissions endanger public health and welfare.
  4. Therefore, Congress intended for EPA to regulate greenhouse gases.
  5. Hence, S.J.Res.26 would “roll back” and “undermine” the Clean Air Act.

A moment’s reflection, however, reveals that this argument is an empty suit. All it proves is that EPA has jumped through the requisite procedural hoops, which nobody disputes. It in no way demonstrate that Congress intended for EPA to regulate greenhouse gases.

As I explain today on MasterResource.Org, the free-market energy blog, Train ignores the obvious:

  1. Congress did not design the Clean Air Act to be a framework for climate policy.
  2. Congress has never voted for the Act to be used as such a framework.
  3. Applying the Clean Air Act to carbon dioxide leads to “absurd results” — regulatory consequences that conflict with and undermine congressional intent, as even EPA admits.
  4. Unless stopped, EPA will be in a position to determine the stringency of fuel economy standards for the auto industry, set climate policy for the nation, and even ‘amend’ portions of the Clean Air Act (to avoid some, but not all, absurd results). These are powers Congress never delegated to EPA.

The importance of the vote on S.J.Res.26 is hard to exaggerate. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance.

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