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The Environmental Protection Agency’s End-Run Around Democracy

The intent of the Clean Air Act needs to be manipulated beyond logic to believe the EPA has any authority to regulate CO2.

by
Marlo Lewis

Bio

January 1, 2011 - 12:37 am
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In a recent issue of the Daily Caller, reporter Jonathan Strong asserts that EPA’s global warming regulations are “no end-run around Congress,” because “This time Congress is being held hostage by its own laws.” That’s exactly what EPA Administrator Lisa Jackson and just about every environmental advocacy group in America says. They are mistaken.

Interestingly, much of Strong’s argument leads to conclusion that EPA is engaged in an end-run. His column leaves little doubt that the Clean Air Act (CAA) is a stunningly inappropriate framework for regulating greenhouse gases. That should make him wary of environmentalist claims that EPA is just carrying out the will of Congress.

Strong notes that President Obama and others depicted CAA regulation of greenhouse gases as “heinously bad” when they wanted to spook Republicans into supporting cap-and-trade legislation as a lesser evil. But why would Congress authorize something heinously bad? Granted, Congress does many foolish things, but it has never, ever voted to put EPA in charge of making climate policy.

Strong observes that it “hardly makes sense to hold individual states accountable for their greenhouse gas levels when every pollution source across the planet is contributing to that level.” Yet once EPA issued its December 2009 Endangerment Rule, it set a fateful precedent that could compel the agency to do just that.

The Endangerment Rule is EPA’s official finding that greenhouse gases endanger public health and welfare. Logically, given that premise, EPA must now develop national ambient air quality standards (NAAQS) for greenhouse gases, and then compel states to reduce atmospheric levels within five or at most 10 years. The Center for Biological Diversity and other groups are petitioning EPA to establish a NAAQS for carbon dioxide (CO2) set at 350 parts per million (ppm) — about 40 ppm below the current concentration (390 ppm). Yet not even a severe depression cutting global GDP and emissions to, say, 1970 levels, would stop CO2 concentrations from rising.

In short, applying the CAA to greenhouse gases threatens to turn the Act into a de-industrialization mandate, a national economic suicide pact. Yet one of the statute’s core purposes, declared in the first section, is “to promote . . . the productive capacity of the population.” When did Congress vote to rescind that provision?

Strong notes that another “major lever” of the law is the requirement, once greenhouse gases become regulated air pollutants, for newly built or modified industrial facilities to install “best available control technology.” However, Strong concedes, because no cost-effective technology exists to “scrub” greenhouse gases out of emissions, “requiring best technology is inherently limited, even irrational.”

Indeed, he continues, regulated entities have a “unique financial incentive” to cheat on any type of greenhouse gas control system. Unlike other gases EPA regulates, the quantity of CO2 emissions “is basically a factor of how much output there is by a facility.” Ergo, regulating greenhouse gases has a unique potential to curb output and economic growth.

That’s a major reason why climate policy is intensely controversial; why the Senate, via the July 1997 Byrd-Hagel resolution, preemptively rejected the Kyoto Protocol; and why the Waxman-Markey cap-and-trade bill became politically radioactive not long after it passed in the House. It’s also why Congress has never even come close to voting for EPA to establish best available control technology standards for greenhouse gases.

Strong acknowledges that applying CAA permitting requirements to greenhouse gases would produce an administrative “meltdown,” a “bureaucratic Armageddon.” EPA and its state counterparts would have to process an estimated 41,000 preconstruction permit applications per year (instead of 280) and 6.1 million operating permits per year (instead of 15,000). The permitting programs would crash under their own weight, crippling both environmental enforcement and construction activity while exposing millions of non-permitted firms to new litigation risks. 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.

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