National Journal

What Happens If Congress Blocks EPA?

by Marlo Lewis on March 9, 2010 · 2 comments

in Global Warming

That’s the topic of this week’s National Journal energy blog. In my contribution, I argue that EPA has been playing a mischievous game that endangers democracy, and that Sen. Lisa Murkowski’s legislation to veto the agency’s endangerment finding would remove this threat. 

In a Feb. 22 letter to Sen. Jay Rockefeller (D-WV), EPA Administrator Lisa Jackson warns that enactment of the Murkowski legislation would scuttle the joint EPA/National Highway Traffic Safety Administration (NHTSA) greenhouse gas/fuel economy rulemaking, which in turn would compel the struggling auto industry to operate under a “patchwork quilt” of state-level fuel-economy regulations.

Ms. Jackson neglects to mention that the patchwork threat exists only because she, reversing Bush EPA Administrator Stephen Johnson’s decision, granted California a waiverto implement its own GHG/fuel economy program. Had Jackson reaffirmed Johnson’s denial, there would be no danger of a patchwork, hence no ostensible need for the joint EPA/NHTSA rulemaking to avert it.

As my blog post explains, EPA should not have approved the waiver in the first place. The California GHG/fuel economy program violates the Energy Policy and Conservation Act, which prohibits states from adopting laws or regulations “related to” fuel economy. Worse, the waiver creates a reverse right of preemption whereby states may nullify federal law within their borders — an affront to the Supremacy Clause. 

Specifically, the waiver would allow California, and other states opting into the California program, to nullify within their boundaries the reformed national fuel economy program that Congress enacted in the 2007 Energy Independence and Security Act (EISA). That leads straight to a patchwork of state-by-state compliance regimes inimical to a healthy auto industry.

The game EPA is playing is a classic case of bureaucratic self-dealing.

First, EPA endangers the U.S. auto industry by authorizing states to flout federal law and the Constitution. Then, EPA proposes to avert disaster via a rulemaking that just happens to put EPA in the driver’s seat in regulating fuel economy – a power Congress never delegated to EPA when it enacted and amended the Clean Air Act.

Nor is that all. The joint GHG/fuel economy regulation will compel EPA to regulate CO2 from stationary sources – another power Congress never delegated to EPA. By expanding its control over the transport sector, EPA will then have to expand its control over manufacturing, power generation, and much of the commercial and residential sectors, too, because all emit CO2.

In addition, the motor vehicle GHG rule sets the stage for EPA to “tailor,” that is amend, the Clean Air Act so that the agency can delay imposing pre-construction and operating permit requirements on small business, which would surely ignite a political backlash.

So thanks to the endangerment finding, EPA not only gets to play in NHTSA’s fuel-economy sandbox, and extend its tentacles throughout the economy, it also gets to play lawmaker, violating the separation of powers.

In light of all the new powers EPA now expects to wield, it is hardly surprising that EPA never made the strong case against Clean Air Act regulation of CO2 in Massachusetts v. EPA. Here’s what EPA should have argued:

  • EPA cannot regulate GHG emissions from new motor vehicles under Sec. 202 of the Clean Air Act without regulating CO2 under the Act as a whole. 
  • Aplying the Act as a whole to CO2 leads ineluctably to “absurd results” that contravene congressional intent.
  • Therefore, Congress could not have intended for EPA to regulate GHG emissions under Sec. 202.

Did EPA throw the fight in the 11th round? I dunno, but losing the Massachusetts case was surely sweet victory to those in the agency who long to regulate America into a ”clean energy future.” The Massachusetts decision laid the groundwork for EPA to deal itself into a position to bypass the people’s elected representatives, impose its will on the auto industry, and, in time, dictate national climate and energy policy.

What happens if Congress enacts Sen. Murkowski’s resolution, nixes the endangerment finding, and mothballs the GHG/fuel economy rule? The authority to make law and national policy returns to where the framers of the Constitution intended — the people’s elected representatives.

Debunking the Smear Campaign against the Murkowski Resolution

by Marlo Lewis on March 2, 2010 · 2 comments

in Global Warming

In recent weeks I have penned four columns debunking the smear campaign against Sen. Lisa Murkowski’s (R-AK) Congressional Review Act (CRA) resolution of disapproval to stop EPA from dealing itself into a position to make climate and energy policy for the nation — a power Congress never delegated to EPA when it enacted the Clean Air Act.

Climate Politics: When Will the Sanctimony End? (MasterResource.Org, Mar. 2) debunks the calumny that the Murkowski resolution is “polluter-crafted,” and shows that this pejorative accurately applies to the Waxman-Markey cap-and-trade bill — legislation that many Murkowski detractors such as Climate Progress and MoveOn.org enthusiastically support.

MoveOn’s Triple Whopper (Pajamas Media, Feb. 10) shows that MoveOn.org’s TV ad campaign against the Murkowski resolution piles falsehood on top of falsehood on top of falsehood. MoveOn claims the Murkowski resolution would “roll back” the Clean Air Act (it wouldn’t), making it harder for EPA to clean the air (it wouldn’t). We should all be in a panic , MoveOn suggests, because “many Americans smoke the equivalent of a pack a day just from breathing the air.” An outrageous falsehood. According to peer-reviewed scientific research, smoking just one cigarette a day delivers anywhere from 12 to 27 times the daily dose of fine particulate matter (PM2.5) that non-smokers inhale in cities with the highest PM2.5 levels.

The aforementioned piece and two others — Resolution Would Protect the Economy (National Journal, Jan. 27) and Move Afoot in the Senate to Can EPA CO2 Regs (Pajamas Media, Jan. 23) – clarify what the Murkowski resolution is and isn’t.

Contrary to Sen. Barbara Boxer (D-CA) and other critics, the resolution is not a referendum on EPA’s science. Rather, it is a referendum on the constitutional propriety of unelected bureaucrats, courts, and eco-litigation groups setting climate and energy policy for the nation. The resolution is not an attempt to veto the scientific content of EPA’s endangerment finding. Rather, it would veto the finding’s legal force and effect.

Thus, there is no valid analogy, as Sen. Boxer claims, between the Murkowski resolution and Congress vetoing the Surgeon General’s finding that cigaratte smoking causes cancer. The Surgeon General’s finding was simply that — an assessment of the scientific literature. It did not even presume to offer policy recommendations, much less trigger a host of new regulations Congress never approved, as EPA’s endangerment finding will do if allowed to stand.

The Obama Administration warns that the Murkowski resolution would thrust the distressed U.S. auto industry into regulatory limbo, because the endangerment finding is the trigger for the combined greenhouse gas/fuel economy standards rulemaking scheduled to go into effect later this month or early April.

The National Auto Dealers Association (NADA) respectfully disagrees. In this letter, released today, NADA argues the Murkowski resolution would benefit the auto industry because there would be one less redundant yet potentially conflicting standard (EPA’s) regulating fuel economy and GHG emissions from new motor vehicles.

I’ll have more to say about NADA’s analysis in a later post.

Energy bill — “first shot” in carbon trade war?

by Fran Smith on April 1, 2009 · 2 comments

in Economy, Energy, Environment, Global Warming, International, Trade

In the wake of the release of the Waxman-Markey energy bill, many commenters have pointed to the drastic restrictions on domestic energy use to address greenhouse gas emissions, while some, like CEI, have pointed to the huge economic costs that would result — costs that would be paid for by consumers and in terms of reduced manufacturing and jobs.  Few have noted a further economic consequence — the possible disruption of the world trading system because of the bill’s endorsement of carbon border taxes on imports from countries that don’t have an energy-repressive regime.  Here’s what CEI’s Iain Murray has to say about that:

The bill as drafted clears the way for carbon protectionism.  It envisages “rebates” to companies that have to pay higher costs than their international competitors, which amounts to illegal state aid under WTO rules.  Further, it directs the President to institute what is laughably called a ‘border adjustment’ program requiring foreign companies to pay for the cost of carbon.  This is nothing more than a tariff aimed at eliminating the competitive advantage of other nations.  Taken together, these provisions represent the first shot in what is likely to prove a disastrous carbon trade war.

Margo Thorning of the American Council for Capital Formation and Bill Kovacs of the U.S. Chamber of Commerce provide hard and realistic criticism of carbon border taxes in National Journal’s Experts Blogs this week.