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The EPA: They Don’t Need No Stinkin’ Climate Treaty

So what if President Obama flopped in Copenhagen? The EPA already has wide-ranging power to enforce its will on the people.

by
Dan Miller

Bio

December 27, 2009 - 12:59 am

There was lots of fuss in Copenhagen as masses of party attendees emitted more than 46,000 metric tons of carbon dioxide just getting to and from there. They damned the wickedness of the rich nations (who made possible the aircraft in which they traveled) in poisoning the atmosphere and then lamented the failure of President Obama to work his magic and pull a treaty out of somebody’s hat — most anybody’s hat but their own. Even so, and despite the sulphurous fumes still emitted by the president of the United States, they probably had a good time enjoying the first-world delights of Copenhagen, including the prostitutes available to them gratis. Perhaps it will have a cathartic effect, but that seems unlikely.

The best they could come up with was a nonbinding accord to curb global warming. President Obama predicted that it would probably be endorsed by a plenary session of the conference. He then departed for Washington before the plenary session actually voted. He cleverly observed that, despite the unprecedented although feeble outcome, and the far less than even modest expectations, “we will not be bound by anything that took place today.” Huh? In the end, the nonbinding accord was not endorsed. Instead, it was merely “taken note of” and viewed as “binding” on whatever countries “endorsed” it, whatever that means, which seems inconsistent with President Obama’s earlier statement about not being bound.

UN Secretary General Ban Ki-moon expressed hopes that a binding treaty might come along late in 2010. The Japanese prime minister called the taking note a “a major step forward,” while German Chancellor Angela Merkel had “mixed feelings.” Some protesters carried signs proclaiming “climate shame.” In short, the much touted Copenhagen conference ended with a whimper.

But don’t fret. The Environmental Protection Agency is on the job and can do just about as much damage to the U.S. economy, and thereby to that of the world, without a treaty. Yes! It Can! Si! Se Puede!

Republican members of Congress who contended that President Obama needed “Congress to deliver on any commitments he makes to reduce global warming gases” were probably sniffing fairy dust, and in any event no such commitments were made. Had that happened, getting the two-thirds Senate approval for a treaty (required by Article II, Section 2 of the Constitution) would have been out of the question. Nevertheless, there are many things President Obama can do without congressional consent. Getting a multi-billion dollar annual appropriation to fund “developing” countries to the point that they can emit only their fair share of carbon equivalents may have been a problem, but only a minor one.

The Environmental Protection Agency, now under President Obama’s control, has massive powers previously granted by Congress and can do just about anything in the environmental arena that President Obama wants. We should have caught on to this mess ages ago, but apparently we didn’t. Administrative and executive agencies have tremendous quasi-legislative power and discretion, so long as they act within the expansive parameters established by Congress. That’s a fact of administrative law, and has been since numerous “independent” and “executive” agencies were given sweeping quasi-legislative powers back during FDR’s New Deal. Congress has, to put it blandly, been overly generous.

On April 2, 2007, the U.S. Supreme Court held in Massachusetts vs. Environmental Protection Agency that the EPA had improperly failed to determine that “greenhouse gas emissions” are dangerous and within its jurisdiction. The 5:4 opinion of the Supreme Court, by Justice Stevens, observed:

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species — the most important species — of a “greenhouse gas.”

The opinion goes on to cite all sorts of “scientific proof” of anthropogenic global warming, including that found by the United Nations’ then-prestigious Intergovernmental Panel on Climate Change (IPCC). One must wonder whether the result would have been different had the Climategate emails been available and brought to the Suprme Court’s attention. The “science” is now far from certain, because climate skeptics have come out of the closet. It was far from certain even before that, but the Climategate emails are the icing on the cow patty.

On December 7, 2009, the EPA did as directed — in spades:

After a thorough examination of the scientific evidence and careful consideration of public comments, the U.S. Environmental Protection Agency (EPA) announced today that greenhouse gases (GHGs) threaten the public health and welfare of the American people. EPA also finds that GHG emissions from on-road vehicles contribute to that threat.

GHGs are the primary driver of climate change, which can lead to hotter, longer heat waves that threaten the health of the sick, poor or elderly; increases in ground-level ozone pollution linked to asthma and other respiratory illnesses; as well as other threats to the health and welfare of Americans.

“These long-overdue findings cement 2009’s place in history as the year when the United States government began addressing the challenge of greenhouse-gas pollution and seizing the opportunity of clean-energy reform,” said EPA Administrator Lisa P. Jackson. “Business leaders, security experts, government officials, concerned citizens and the United States Supreme Court have called for enduring, pragmatic solutions to reduce the greenhouse gas pollution that is causing climate change. This continues our work towards clean energy reform that will cut GHGs and reduce the dependence on foreign oil that threatens our national security and our economy.”

The EPA is on the job, and flatulent cows and just about everyone else had better watch out.

With the broad mandate handed to the EPA by the Supreme Court in 2007, and with an EPA under the wise guidance of President Obama and no further statutory authority necessary, the EPA can do pretty much as it wishes to control the emission of greenhouse gasses. Worse, should it be found that additional legislation is needed, the EPA will probably get it with only a majority vote in the House and, at most, sixty votes needed in the Senate (only enough to invoke cloture). But additional legislation probably won’t be necessary. Sure, there can and probably will be litigation opposing EPA actions, but in the unlikely event that its actions are definitively held by the judiciary to have been procedurally erroneous, years will have passed and the damage to the economy will have been done. Screwing up the economy will be far easier and faster than unscrewing it. The earliest likely chance of starting to undo the mess will come after January 2014, when (I hope) President Obama will have been replaced and the Congress may have reverted to something approaching sanity.

It is obviously possible that President Obama’s clout will be diminished by the Copenhagen circus and by either the defeat or passage of other initiatives. I would not count on it. In any event, with the EPA in his pocket, he can easily continue to mess up the economy with or without opposition in Congress, one of the meanest places on Earth.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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