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EPA’s Greenhouse Power Grab: Baucus’s Revenge, Democracy’s Peril

Adopting the Baucus amendment would put Congress's legislative stamp of approval on EPA's end-run around the legislative process.

by
Marlo Lewis

Bio

March 21, 2011 - 12:06 am
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Last week, Sen. Max Baucus (D-Mont.) introduced an amendment to S. 493, a bill reauthorizing small business research and technology programs. Baucus’s amendment would essentially codify EPA’s Tailoring Rule, which exempts small emitters of greenhouse gases (GHGs) from regulation under the Clean Air Act’s (CAA’s) Prevention of Significant Deterioration (PSD) preconstruction permitting program and Title V operating permits program.

But that just means the Baucus amendment would codify the entire ever-growing ensemble of EPA climate policy initiatives of which the Tailoring Rule is only a small piece.

The Tailoring Rule presupposes EPA’s Tailpipe Rule, which establishes first-ever GHG standards for new motor vehicles, and, more importantly, EPA’s Endangerment Rule, which contains the agency’s ”finding” that GHG emissions endanger public health and welfare. The Endangerment Rule both authorizes and obligates EPA to issue a host of other regulations — GHG emission/fuel-economy standards for all types of mobile sources, GHG/energy-efficiency standards for all categories of industrial sources, and even national ambient air quality standards (NAAQS) for carbon dioxide (CO2) and other GHGs.

Congress, however, never authorized EPA to determine fuel economy standards for motor vehicles, much less dictate national policy on climate change. The CAA, after all, was enacted in 1970, years before global warming was even a gleam in Al Gore’s eye. Adopting the Baucus amendment would put Congress’s legislative stamp of approval on EPA’s end-run around the legislative process.

The Baucus amendment has almost no chance of passing in the GOP-led House of Representatives. However, it does not need to pass to perpetuate EPA’s shocking power grab. All it has to do is peel off enough votes in the Senate to prevent passage of the Inhofe-Upton Energy Tax Prevention Act. That bill, which is almost certain to pass in the House, would repeal EPA’s Endangerment Rule and permanently stop the agency from implementing climate policies Congress never approved.

Like Sen. Jay Rockefeller’s (D-W.Va.) amendment to delay EPA’s GHG regulations for two years, the Baucus amendment provides political cover for Senators who want to appear to be doing something to rein in EPA while in fact protecting the agency’s  purloined power to restrict America’s access to affordable, carbon-based energy.

Three points are especially worthy of note.

(1) Baucus’s amendment implicitly confirms that Congress never authorized EPA to regulate GHGs through the CAA.

EPA’s Endangerment Rule obligated the agency to issue a Tailpipe Rule establishing GHG emission standards for new motor vehicles. According to EPA’s Triggering Rule, once the Tailpipe Rule took effect (Jan. 2, 2011), CO2 became a “regulated air pollutant” and “major” stationary sources automatically became “subject to regulation” under the PSD and Title V permitting programs. The problem, as is now widely known, is that literally millions of non-industrial buildings and facilities (office buildings, apartment complexes, big box stores, hospitals, schools, large houses of worship, Dunkin’ Donut shops) emit enough CO2 — 250/100 tons per year — to meet the PSD/Title V numerical definition of “major” source.

Thus, the Endangerment Rule inexorably leads to what EPA itself calls ”absurd results” – policy outcomes that conflict with and undermine congressional intent. EPA and its state counterparts would have to process an estimated 81,000 PSD preconstruction permit applications per year (instead of 280) and 6.1 million Title V operating permits per year (instead of 15,000). The permitting programs would crash under their own weight, crippling both environmental enforcement and construction activity. A more potent Anti-Stimulus Program would be hard to imagine. This is not what Congress authorized when it enacted the CAA in 1970, nor when it amended the statute in 1977 and 1990.

To avoid a red tape nightmare and an angry political backlash, EPA “tailored” the statutory numerical definitions of “major” source to exempt all but the largest GHG-emitters from PSD and Title V. ”Tailoring,” however, is just bureaucrat-speak for “amending.” An administrative agency has no power to amend statutes. Certainly the CAA nowhere authorizes EPA to revise statutory provisions to avoid an administrative debacle of its own making.

Not once during the four years when when Massachusetts v. EPA was litigated before the D.C. Circuit Court of Appeals and the U.S. Supreme Court did counsel for EPA bother to point out that regulating GHGs via the CAA would lead to absurd results, nor did counsel mention that EPA would have to play lawmaker and amend the CAA in order to avoid an administrative meltdown. More fundamentally, EPA’s counsel never made the basic point that EPA could not issue a GHG endangerment rule without eventually regulating GHGs under the CAA as a whole – a gigantic shift in public policy that Congress could not possibly have intended when it enacted the CAA in 1970. That EPA’s counsel pulled its punches is hardly surprising. By losing the case in the Supreme Court, EPA gained the truly awesome, economy-restructuring power to regulate CO2, the most ubiquitous byproduct of industrial civilization.

Although ostensibly an amendment to a small business bill, what the Baucus amendment chiefly and more importantly amends is the CAA. That’s what codifying the legally dubious Tailoring Rule means. The amendment confirms in spades that the CAA is an unreasonable, even absurd framework for determining climate policy. The only way to make GHGs fit into CAA regulatory provisions without immediately disrupting the economy is to amend the Act so that it is no longer the same statute under which the Court decided Mass. v. EPA.

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