endangerment

Greenhouse Protection Racket

by Marlo Lewis on July 6, 2010 · 1 comment

in Odds & Ends

Climate policymaking in our Nation’s capital often resembles the heavy-handed dialogue of old-time mobster films.

“Are you gonna come along quietly, or do I have let the California Air Resources Board (CARB) muss ya up?” That was pretty much the line White House Environment Czarina Carol Browner took to obtain the auto industry’s support for the joint EPA/National Highway Traffic Safety Administration (NTSHA) greenhouse gas (GHG) emission/fuel economy standards rule. EPA is now in a position both to determine the stringency of fuel economy standards for the auto industry and to set climate policy for the nation. Yet the Clean Air Act provides no authority to regulate fuel economy and says nothing about greenhouse gases or global climate change. ”Badges? We don’t need no stinking badges.”  

Modus Operandi: Threaten in Order to Remove the Threat — for a Price

Here’s how the regulatory mugging went down. 

In February 2009, EPA Administrator Lisa Jackson commenced a rulemaking to reconsider Bush EPA Administrator Stephen Johnson’s denial of California’s request for a waiver to establish its own greenhouse gas emission standards program. Because the waiver would also allow other states to adopt the California program, because GHG emission standards are mainly fuel economy standards by another name, and because automakers would have to reshuffle the mix of vehicles delivered for sale in each “California” state to achieve the same average fuel economy in those states, Jackson’s proceeding threatened to subject automakers to inefficient, consumer-thwarting, regulatory patchwork.

In May 2009, Czarina Browner conducted secret negotiations with automakers, CARB Chairman Mary Nichols, and major environmental groups. Browner required participants to take a vow of silence and forbade anyone to take notes, violating the Presidential Records Act. The closed-door negotiations produced an “historic agreement” whereby automakers would support the EPA/NHTSA GHG/fuel economy standards rule and California and other states would deem compliance with the federal standards as compliance with their own.

In addition, observes Rep. Darrel Issa (R-Calif.), at the same time the Browner-led negotiations were taking place, ”the government was also engaged in bailout talks with General Motors (GM) and Chrysler,” resulting in “an ownership stake for the federal government of 61% of GM and 8% of Chrysler, respectively.” Whether Browner literally made the auto industry an offer it could not refuse, with the sweetener of financial assistance also contingent on the industry’s embrace of GHG regulation, we may never know.

This much is clear. By granting California’s request for a waiver, EPA created the threat of a regulatory patchwork, enabling the White  House to offer ”protection” in the form of the joint GHG/fuel economy standards rule. The protection “fee” was the auto industry’s unquestioning support for the joint rule and its prerequisite, EPA’s endangerment rule.

Thus, the Auto Alliance became the key industry lobby opposing Sen. Lisa Murkowski’s resolution to overturn EPA’s endangerment rule. The Alliance warned that if the endangerment finding were overturned, the “historic agreement” would unravel, confronting automakers with “the alarming possibility of having to comply with multiple sets of conflicting fuel economy standards.” 

That is correct, but only because EPA Administrator Jackson, reversing her predecessor’s decision, granted California a waiver to establish GHG emission standards for new motor vehicles. An obvious solution would be to overturn the waiver. After all, the Energy Policy and Conservation Act clearly prohibits states from adopting laws or regulations ”related to fuel economy,” and the California motor vehicle emissions program is basically a de facto fuel economy program. The waiver effectively repeals federal law, violating the separation of powers. Not that you’ll ever hear about that from Government Motors. Mum’s da woid.

Mirage of Regulatory Certainty

The auto industry is not the only target of the greenhouse protection racket. For years, the greenhouse gang has been saying that only cap-and-trade can end the intolerable ”regulatory uncertainty” facing the electric power sector, energy-intensive manufacture, and other CO2 emitters. But who created the uncertainty in first place if not the self-same advocates of cap-and-trade? If they were serious about relieving uncertainty, they would disavow the regulatory schemes for which they have been campaigning.

Businesses lobbying for cap-and-trade in the name of certainty should read the fine print. The Waxman-Markey and Kerry-Boxer bills, for example, have multiple escalater clauses setting the stage for dramatic increases in regulatory stringency well beyond the bills’ explicit emission reduction targets.  Similarly, the bills’ “findings” presenting the “scientific” rationale for cap-and-trade are not mere rhetorical fluff but precedents for litigation targeting emission sources considerably smaller than those explicitly identified as “covered entities.” Enact such legislation, and the only certainty is that regulatory burdens will grow unpredictably.

Too Clever by Half

Last but not least, cap-and-taxers sell their policy as protection from litigation-driven greenhouse gas regulation under the Clean Air Act.  The sales pitch goes something like this: “Pretty nice company you got deah, shame if sumpin’ bad waz to happen to it. Everybody needs protection. You need protection. It’s called Kerry-Lieberman.” Note the familiar pattern. The gang pushing cap-and-trade as protection from EPA are the same folks who sued EPA to regulate greenhouse gases and who vilified Sen. Murkowski and others for attempting to stop EPA.

This is all too clever by half. If cap-and-trade dies in the 111th Congress, which seems increasingly likely, the Obama administration and its allies on the Hill will take sole ownership of the compliance costs, job and GDP losses, and “absurd results“ arising from EPA regulation of greenhouse gases under the Clean Air Act. 

Democratic leaders may not recognize it yet, but they have painted themselves into a corner. They have become the Party of Endangerment — the party endangering the U.S. economy by championing the endangerment rule, with all its cascading regulatory effects.

EPA Overreach

by Iain Murray on June 15, 2010

in Deregulate to Stimulate, Energy, Environment, Politics as Usual

I have an article in the Washington Times today about the EPA’s new status as a rogue agency.  It begins:

The Senate undermined its constitutional role last week with a vote that allows the Environmental Protection Agency (EPA) to regulate greenhouse gases under the Clean Air Act. The 53 senators favoring this huge delegation of authority to the executive branch disregarded the principle of separation of powers. The low quality of the debate that preceded the vote, as well as its result, should put an end to the Senate’s reputation as the world’s greatest deliberative body.

While you’re there, also check out CEI alumnus Sterling Burnett’s complementary article.

No, It’s Not About Oil; Besides, Oil Is Good!

by Marlo Lewis on June 10, 2010 · 7 comments

in Global Warming

It is a measure of the weakness of the case against Sen. Murkowski’s resolution of disapproval (S.J.Res.26) that opponents keep trying to change the subject.

They want to pretend that a vote for S.J.Res.26 is a vote for Big Oil in general and for BP’s oil spill and all the associated ecological and economic damage in particular.

To say it again, if they really think oil is so bad that America should pay any price, bear any burden, and endure any sacrifice to get “beyond petroleum,” then they should follow the Constitution and try to assemble legislative majorities capable of enacting their agenda.

They know they can’t, so they want EPA — an administrative agency — to enact their agenda for them. That this makes a mockery out of our constitutional system of separated powers and democratic accountability doesn’t seem to bother them one whit.

The vote on S.J.Res. 26 is not “about oil.” The endangerment rule, which the Murkowski resolution would overturn, would not create a single tool or authority that could have averted the BP oil spill. It would not tighten a single petroleum industry safety standard or improve a single emergency response program. It would not create a single incentive that might have made BP more diligent in implementing safety standards.

The only way greenhouse gas regulations could stop oil spills is by making deep water drilling unprofitable. That, however, would make America more dependent on IMPORTED oil (duh!). Is that want opponents of S.J.Res.26 want?

They’ll say, no, their goal is to ”set America free” from dependence on petroleum as such. But that is not possible at reasonable cost, which is why despite decades of anti-petroleum agitation, fuel economy standards, and government support for alternative technologies and fuels, U.S. petroleum consumption and imports continue to increase.

At most, EPA’s greenhouse gas emission standards can only decrease the rate at which U.S. petroleum consumption increases. More accurately, EPA’s standards would only complicate and reduce the efficiency of the fuel economy program Congress created and amended via the 1975 Energy Policy and Conservation Act and 2007 Energy Independence and Security Act. As the National Automobile Dealers Association explains in a letter in support of S.J.Res.26, overturning the endangerment rule would help restore a more efficient approach: “a single national fuel economy standard, with rules set by Congress.”

Finally, the notion that oil is bad and hence that government can’t do too much to restrict petroleum production is benighted. Members of Congress who espouse this view either deliberately mislead the public or are ignorant of oil’s historic and continuing massive contribution to the improvement of human health and welfare.

A recent post on a blog called The Intellectual Activist eloquently explains the common sense of the matter. I reproduce it below.

TIA Daily • June 4, 2010
FEATURE ARTICLE
Oil Is Good
by Jack Wakeland
I appreciated the pro-industrialism in last Friday’s edition of TIA Daily:

I also think that we need to return to a more old-fashioned attitude toward industrial accidents. Today, they are considered utterly unacceptable catastrophes for one reason: a large segment of the culture does not accept that it is legitimate for heavy industry to exist at all and has a particular animus toward industries that generate power—including oil and coal. So they exploit every accident to promote their pre-existing agenda of shutting down all oil exploration. But if we accept that the Industrial Revolution is a good thing—that it has roughly doubled the average lifespan and vastly increased our quality of life—then we accept that the oil industry has to exist and that occasional accidents are just part of the cost of living.

With continuous 24-hour headline news coverage of this supposedly “unprecedented” disaster—in fact, it was preceded by the 10-month-long, 140 million-gallon Ixtoc 1 blowout off the gulf coast of Mexico in 1979—Rob Tracinski and Sarah Palin are among a tiny minority of American commentators who have voiced the opinion that industrial development is essential for civilization. Unfortunately Sarah Palin and almost all conservatives agree 100% with conservationism—the pre-New-Left version of environmentalism. They say that energy development as a “dirty” business—a necessary evil—that produces “dirty” messes. But we must endure the ugly mess if we are to enjoy the benefits of living a civilized existence.

Of all of the hundreds of commentaries written about the BP oil spill, I can’t recall one single editorial that endorses oil drilling as good.

It is good for oil company stock holders. Good for industrial producers. Good for automobile and truck drivers. Good for people who travel by ship, railroad, or aircraft. Good for people who don’t want to be limited to living out their whole lives without ever traveling farther than 100 miles from the village in which they were born.

Oil is good for people who buy products that are shipped to them from out of town. Good for producers who buy parts and supplies that are shipped in from out of town. Good for the specialization of industrial production that is made possible by mass shipment of parts and materials. Good for the geometrical growth of world-wide industrial productivity made possible by the specialization of production and trade.

Oil is good for farmers who use machines to plant and reap and store and dry and ship and process all of the food we eat. Good for farmers who use fertilizer and other agri-chemicals made from oil to boost the productivity of the land. Good for anyone who doesn’t enjoy enduring bouts of malnutrition and starvation—and the occasional famine.

Oil is good for people who don’t want to endure freezing indoor temperatures in the winter. Good for all producers and end users of lubricants, paints, plastics and other petro-chemical-based products. (Half of the volume of a barrel of crude oil ends up going to make fertilizers and plastics.)

Oil is good for powering all of the ships, trucks, aircraft, helicopters, communications equipment and base electrical systems, and all of the fighting vehicles that the US military use for our national defense. (Ask yourself why it was that when the US Army Air Force decided to destroy the entire nation of Germany in 1944—why was it that they bombed the oil refineries? Why was it that they bombed all modes of transportation to limit shipment between factories of unfinished industrial products?)

Oil drilling isn’t a “dirty” business. It isn’t a necessary evil. It is good. It is a life-giving good. It is an unqualified good.

The problems of an occasional industrial accident in which fewer than a dozen men are killed fades to nothing in comparison with the great comfort and prosperity and scope of life—including the operation of the mechanized agriculture and industrial production upon which the bare survival of the vast majority of the 6.5 billion human beings currently living on this earth depends.

No, Sen. Durbin, Choice Not Between Real Science and Political Science

by Marlo Lewis on June 10, 2010

in Global Warming

Sen. Durbin claims S.J.Res.26 presents the Senate a choice between “real science” and “political science.” Not by a country mile. See my previous posts on this point.

Actually, as a colleague reminds me, it is a misnomer to call EPA’s regulatory trigger the endangerment “finding” rather than the endangerment “rule.”  The Senate is voting on the “legal force and effect” of the endangerment rule, not trying to determine scientific truth via a head count.

Durbin claims that EPA made its endangerment rule after consulting with “scientists across America.” In fact, as the endangerment rule acknowledges, EPA largely based the rule on the IPCC reports. As the Climategate scandal reveals, the IPCC reports do not meet U.S. Government transparency and accountability standards.

If Sen. Durbin thinks greenhouse gas emissions are so dangerous, then he should follow the Constitution and do the hard work of trying to assemble legislative majorities capable of turning his agenda into law. 

Instead, Durbin wants EPA to ‘enact’ his agenda on its own authority, knowing that EPA won’t have to answer to his constituents for the economic impacts at the ballot box.

Climategate and consensus nonsense

by Fran Smith on December 18, 2009

in Energy, Environment, Global Warming, Precaution & Risk, Regulation

Cato’s Pat Michaels, one of the scientists attacked in the Climategate emails, has an excellent editorial in the Wall Street Journal today with examples of how the scientists promoting catastrophic global warming shut out dissident voices in supposedly peer-reviewed journals.

Michaels notes that the EPA finding of endangerment from CO2 emissions, based on the tainted research of the Climategate emailers, should be called into question.  He writes:

The result of all this is that our refereed literature has been inestimably damaged, and reputations have been trashed. Mr. Wigley repeatedly tells news reporters not to listen to “skeptics” (or even nonskeptics like me), because they didn’t publish enough in the peer-reviewed literature—even as he and his friends sought to make it difficult or impossible to do so.

Ironically, with the release of the Climategate emails, the Climatic Research Unit, Michael Mann, Phil Jones and Tom Wigley have dramatically weakened the case for emissions reductions. The EPA claimed to rely solely upon compendia of the refereed literature such as the IPCC reports, in order to make its finding of endangerment from carbon dioxide. Now that we know that literature was biased by the heavy-handed tactics of the East Anglia mob, the EPA has lost the basis for its finding.

EPA “Tailoring Rule” confirms Mass v. EPA set the stage for administrative quagmire and economic disaster

by Marlo Lewis on October 1, 2009 · 1 comment

in Features, Global Warming, Legal, Zeitgeist

Updated at 10/1/09 4:47 PM

I’ve just begun reading EPA’s proposed Tailoring Rule to establish a new 25,000 tons per year (TPY) ”major stationary source” applicability threshold for greenhouse gas (GHG) emissions under the Clean Air Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. I’ll blog about this again later on, but for now I just want to say, “We told ya so!”

Attorney Peter Glaser, the U.S. Chamber of Commerce, CEI and a host of other free market groups warned repeatedly that regulating GHG emissions from new motor vehicles — the immediate policy objective of plaintiffs in the Supreme Court global warming case, Massachusetts v. EPA – would have the following consequences:

  1. CO2 would automatically become an air pollutant “subject to regulation” under the PSD and Title V programs.
  2. Millions of previously unregulated entities — big box stores, enclosed malls, hotels, apartment complexes, mid-sized office buildings, even commercial kitchens — would be vulnerable to new controls, paperwork, penalties, and litigation.
  3. The volume of permit applications would create an administrative quagmire for EPA and state environmental permitting agencies.
  4. The new costs, uncertainties, and delays would create an unprecedented roadblock to new construction and economic development, turning the Clean Air Act into a gigantic Anti-Stimulus program.

Predictably, global warming activists, such as Sierra Club climate council David Bookbinder, a plaintiff in Massachusetts v. EPA, derided these concerns as a “bugaboo,” a “red herring,” and a “pure scare tactic” by industry foes of regulatory climate policy. (See segments 1:47 – 1:48 and 2:03 – 2:05 of the Senate Environment and Public Works Committee’s Archived Webcast).

EPA’s July 30, 2008 Advanced Notice of Proposed Rulemaking: Regulating Greenhouse Gas Emissions under the Clean Air Act (ANPR) acknowledged that applying PSD to CO2 might increase the volume of permit applications by an “order of magnitude” (p. 44499), might “overwhelm” the administrative resources of permitting authorities (p. 44507), and might subject sources to new costs, uncertainties, and delays (p. 44502). However, the ANPR considerably understated the risks, Glaser, the Chamber, and CEI argued.

Well, you can now get the lowdown straight from the horse’s mouth.  Here’s what EPA’s Tailoring Rule says:

If PSD and Title V requirements apply at the applicability levels provided under the CAA, state permitting authorities would be paralyzed by permit applications in numbers that are orders of magnitude [not a mere "order of magnitude," as in the ANPR] greater than their current administrative resources could accomodate [p. 1].

* * *

If PSD and Title V requirements apply at the applicability levels provided under the CAA, many small sources would be burdened by the costs of individualized PSD control technology requirements and permit applications. In addition, state permitting authorities would be paralyzed by enormous numbers of these permit applications; the numbers are orders of magnitude greater than the current inventory of permits and would vastly exceed the current administrative resources of the permitting authorities [pp. 15-16]

* * *

In short, without this tailoring rule, the administrative burdens would be immense, and they would immediately and completely overwhelm the permitting authorities. Without this tailoring rule, permitting authorities would receive approximately 40,000 PSD permit applications each year — currently, they receive approximately 300 — and they would be required to issue Title V permits for approximately some six million sources — currently, their Title V inventory is some 15,000 sources [p. 19].

* * *

Based on our GHG threshold data analyis, we estimate that almost 41,000 new and modified facilities per year would be subject to PSD review, based on the current rate of modifications at major sources, if a GHG major sourcee threshold of 250 TPY CO2e [carbon dioxide equivalent] were applied. Compared to the 280 PSD permits currently issued last year, this would be an increase in permits of more than 140-fold [p. 50].

* * *

Based on these assumptions [permitting agency costs in time and money to process a PSD permit for a commercial or residential GHG source would be only 20% of the time and money required to process a permit for an industrial GHG source], the additional annual permitting burden for permitting authorities, on a national basis, is estimated to be 3.3 million hours at a cost of $257 million to include all GHG emitters above the 250-TPY threshold [pp. 51-52].

* * *

Most significant [of new Title V obligations triggered by GHG regulation of new motor vehicles] are the more than six million sources of GHGs that would become newly subject to Title V requirements because they exceed the 100-TPY threshold for GHG but did not for previously regulated pollutants. Although there are generally not applicable requirements for GHGs that apply to such sources [a gross understatement -- although there are generally no Clean Air Act requirements, period, that apply to such sources], these six million sources would be required to submit a Title V permit application within 1 year [pp. 56-57].

* * *

Obviously, this massive influx of permit applications would overwhelm permitting authorities’ administrative resources. Indeed, permitting authorities report that they currently are having difficulty keeping up with their existing permit workloads. The Tite V Operating Permits System database, which tracks permit issuance, confirms that issuance of many permits is already delayed. By increasing the volume of permits by over 400 times, the administrative burden would be unmanageable [p. 58].

* * *

We estimate that for permitting authorities, the average new commercial or residential [Title V] permit would require 43 hours to process, which is 10 percent of the time needed for the average industrial permit . . . We estimate that the total nationwide additional burden for permitting authorities for Title V permits from adding GHG emissions at the 100-TPY threshold would be 340 imllion hours, which would cost over $15 billion [p. 59].

These burdens are “absurd,” EPA argues, because they are “inconsistent” with “congressional intent,” indeed would “undermine congressional purposes” (p. 19). Hence, EPA concludes, it is justified in effectively amending the statute, upping the PSD and Title V applicability thresholds for major sources from 100/250 TPY to 25,000 TPY.

Well, somebody needs to point out the obvious. The looming threat of an economy-chilling administrative quagmire didn’t just happen. The absurdity of agencies spending 340 million hours and $15 billion to process hollow operating permits didn’t suddenly spring forth from the text of Title V. Nothing in the Clean Air Act has changed since it was amended in 1977 and 1990 to turn it into an economic wrecking ball. Congress is still debating cap-and-trade, and never signed off on EPA using the Clean Air Act to control CO2 emissions from stationary sources. No, the absurd results are entirely a product of Mass. v. EPA. So is the necessity for EPA now to amend clear and unambiguous statutory language, violating the separation of powers.

When a court decision leads to absurd results, there are only two possibilities. (1) The absurdity was lurking in the statute all along and the court simply brought it to light; or (2) the court messed up, manufacturing absurdity in an otherwise sane and reasonably coherent law. My comment on EPA’s proposed endangerment finding (especially pp. 28-33) argues the blame lies with the Court, not those who drafted and enacted the Clean Air Act.

EPA proposes illegal rule

by Marlo Lewis on September 2, 2009 · 2 comments

in Global Warming

Yesterday, the U.S. Environmental Protection Agency (EPA) sent a draft proposed rule to the Office of Management and Budget (OMB) that would exempt small emitters of carbon dioxide (CO2) from Clean Air Act (CAA) pre-construction permitting requirement, Greenwire reports.

The proposed rule, as described in Greenwire, is blatantly illegal. It is a tacit admission that the Supreme Court decision in Massachusetts v. EPA set the stage for an economic disaster. It is additional evidence that Mass v. EPA was wrongly decided. It confirms CEI’s warning that the Court’s ruling imperils a core constitutional principle — the separation of powers.

In Mass. v. EPA, the Supreme Court, by a narrow 5-4 majority, decided that CO2 and other greenhouse gases (GHG) are “air pollutants” within the meaning of CAA, and gave EPA three options: (1) issue a finding that GHG-related “air pollution” “may reasonably be anticipated to endanger public health or welfare,” (2) issue a finding of no endangerment, or (3) provide a “reasonable explanation” why the agency cannot or will not exercise its discretion to make such a determination.

The Court further held that if EPA makes a finding of endangerment, then it has a duty, under CAA Sec. 202, to develop and adopt GHG emission standards for new motor vehicles.

EPA picked option (1), and last month, it sent OMB a draft proposed rule to establish GHG emission standards for new motor vehicles.

Although the Court majority asserted that an endangerment finding could not lead to “extreme measures” and would only require a cost-constrained adjustment of existing federal fuel-economy standards (see. p. 28 of the decision), in fact the endangerment finding will trigger a chain reaction throughout the CAA — a regulatory cascade potentially exceeding in cost, scope, and intrusiveness the Kyoto Protocol and many other GHG-control schemes Congress has never seen fit to pass.

For starters, establishing GHG emission standards for new motor vehicles will by definition make CO2 a CAA-regulated air pollutant. As such, CO2 would automatically be ”subject to regulation” under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program (CAA Sec. 165). Under the CAA, any firm that plans to build a new “major” stationary source, or modify an existing major source in a way that would significantly increase emissions, must first obtain a PSD permit from EPA or a state environmental agency.

A PSD source is “major” if it is in one of 28 listed categories and has a potential to emit 100 tons per year (TPY) of an air pollutant, or if it is any other type of establishment and has a potential to emit 250 TPY (CAA Sec. 169). 

And there’s the rub. Whereas only large industrial facilities have a potential to emit 250 TPY of air contaminants such as sulfur dioxide or particulate matter, an immense number and variety of entities – office buildings, hotels, big box stores, enclosed malls, small manufacturing firms, even commercial kitchens – have a potential to emit 250 TPY of CO2. A September 2008 report commissioned by the U.S. Chamber of Commerce  estimates that 1.2 million buildings and facilities – most of them currently unregulated under the CAA – actually emit 250 TPY of CO2. All would be vulnerable to new PSD regulation, controls, paperwork, penalties, and litigation.

To obtain a PSD permit, firms must document their compliance with ”best available control technology” (BACT) standards. Even apart from any technology investments needed to comply with BACT, the PSD permitting process is costly and time-consuming.  In a recent year, each permit on average cost $125,120 and 866 burden hours for a source to obtain,  EPA estimates. No small business could operate subject to the PSD administrative burden.

The costs, uncertainties, and delays from applying PSD and BACT to CO2 would have a chilling effect on economic development and construction activity. It would turn the CAA into a gigantic Anti-Stimulus Package in a period of financial crisis and high unemployment. Definitely not something the Obama administration wants on its record in the 2010 election season.

EPA’s July 2008 Advanced Notice of Proposed Rulemaking (ANPR) outlined several administrative remedies to shield small entities from PSD requirements, all of doubtful legality. But if the Greenwire article is accurate, EPA is opting for the most brazenly illegal option of all. It proposes to revise, on its own authority, the PSD threshold from 250 TPY to 25,000 TPY.

Now friends, under the 1984 Supreme Court case of Chevron v. NRDC, EPA has considerable discretionary authority in interpreting the CAA where the statute is “silent or ambiguous with respect to the specific issue.” But there is nothing ambiguous about the number 250. No matter how you squint at the page, 250 is 100 times smaller than the threshold EPA proposes to put in its place.

According to Greenwire, Sierra Club’s David Bookbinder, a counsel for petitioners in Mass. v. EPA, “said the rule would also deflect claims from Republican lawmakers and industry groups that the Obama administration is seeking to regulate small emission sources such as doughnut shops, schools, and nursing homes.” But the Obama administration’s intent is not the issue. The issue is whether EPA, as a matter of law, must apply PSD requirements to doughnut shops, etc. once it starts regulating CO2 under Sec. 202.

Greenwire then quotes Bookbinder: “Putting this rule in place deflates a lot of political rhetoric about regulating CO2.” Well, I hope industry and the GOP are not so naive as to put their trust in an illegal rule. A rule that flouts clear statutory language of the CAA can provide no durable protection from the regulatory cascade that an endangerment finding and EPA adoption of motor vehicle GHG emission standards would unleash.

EPA’s proposed draft rule is a tacit admission of what CEI has said all along: EPA cannot regulate CO2 under the CAA without endangering the U.S. economy — unless EPA plays lawmaker, amends the Act, and violates the separation of powers. When the Supreme Court handed down the Mass. v. EPA decision, it set the stage for a constitutional crisis.

Of course, the bigger constitutional crisis stemming from Mass. v. EPA is that we could end up with an energy suppression regime far more costly than Kyoto or Waxman-Markey, yet without the people’s elected representatives ever voting on it.

For the gory details, see my blog post on MasterResource.Org and my comment (pp. 28-56) on EPA’s proposed endangerment finding.