On Thursday, Sen. Lisa Murkowski (R-AK), ranking member of the Senate Energy and Natural Resources Committee, introduced a resolution of disapproval, under the Congressional Review Act (CRA), to overturn EPA’s endangerment finding (the agency’s official determination that greenhouse gas emissions endanger public health and welfare) . Murkowski’s floor statement and a press release are available here.
The resolution has 38 co-sponsors, including three Democrats (Blanche Lincoln of Arkansas, Ben Nelson of Nebraska, and Mary Landrieu of Louisiana). If all 41 Senate Republicans vote for the measure, Sen. Murkowski will need only seven additional Democrats to vote “yes” to obtain the 51 votes required for passage. (Under Senate rules, a CRA resolution of disapproval cannot be filibustered and thus does not need 60 votes to ensure passage.)
Murkowski’s resolution of disapproval is a gutsy action intended to safeguard the U.S. economy, government’s accountability to the American people, and the separation of powers under the Constitution. Naturally, Sen. Barbara Boxer and other apostles of Gorethodoxy denounce it as an assault on the Clean Air Act, public health, science, and “the children.”
At a press conference she organized on Thursday, Boxer employed an old rhetorical trick — when you can’t criticize your opponent’s proposal on the merits, liken it to something else that is plainly odious and indefensible. She said:
Imagine if in the 1980s the Senate had overturned the health finding that nicotine in cigarettes causes lung cancer. How many more people would have died already? Imagine if a senator got the votes to come to the floor to overturn the finding that lead in paint damages children’s brain development? How many children and families would have suffered? Imagine if the senator had come down to the floor and said, you know, I don’t think black lung disease is in any way connected to coal dust. Imagine!
Note that all the outrages Boxer is describing are imaginary. Murkowski is not proposing to question the link between cigarette smoke and lung cancer, etc. More to the point, she is not questioning the linkage between greenhouse gas emissions and climate change. Nor is she questioning the validity of EPA’s endangerment finding (even though there are strong scientific reasons for doing so). In fact, Sen. Murkowski supports legislation to control greenhouse gas emissions (her floor statement and legislative record leave no doubt on these points).
What Murkowski opposes is EPA dealing itself into a position to control the U.S. economy without “any input” from the people’s elected representatives. The endangerment finding compels EPA to regulate carbon dioxide (CO2) from new motor vehicles, which then in turn obligates EPA to apply Clean Air Act pre-construction and operating permit requirements to millions of small businesses. The endangerment finding also establishes a precedent for economy-wide regulation of greenhouse gases under the National Ambient Air Quality Standards (NAAQS) program.
The Murkowski resolution addresses a basic conflict of interest that Sen. Boxer prefers to sweep under the rug. Under the Clean Air Act, the agency that makes the findings that trigger regulatory action is the same agency that does the regulating. Since regulatory agencies exist to regulate, they have a vested interest in reaching “scientific” conclusions that expand the scope and scale of their power.
Up to now, this ethically flawed situation has been tolerable because Congress has clearly specified the types of substances over which EPA has regulatory authority — those that degrade air quality, those that pose acute risks of toxicity, or those that deplete the ozone layer. But when Congress enacted and amended the Clean Air Act, it never intended for EPA to control greenhouse gases for climate change purposes.
Yes, it is possible, by torturing the text of the Clean Air Act as the Supreme Court did in Massachusetts v. EPA, to infer congressional authority for greenhouse gas regulation. But the fact remains that Congress did not design the Clean Air Act to be a framework for climate policy, has never voted for the Act to be used as such a framework, and has never signed off on the regulatory cascade that EPA’s endangerment finding, if allowed to stand, will ineluctably trigger.
According to the Washington Post, Boxer stated that if the public has to wait for Congress to pass legislation to control greenhouse gas emissions, “that might not happen, in a year or two, or five or six or eight or 10.” Yes, but that’s democracy. And the democratic process is more valuable than any result that EPA might obtain by doing an end run around it.
Since the Progressive Era, our country has increasingly lived under a constitutionally dubious system of regulation without representation. Regulations have the force and effect of law, and many function as implicit taxes. Article I of the Constitution vests all legislative powers, such as the power to tax, in Congress. For decades, however, Congress has enacted statutes that delegate legislative power to agencies that are not accountable to the people at the ballot box. Constitutionally, the only saving grace is that the regulations implement policies clearly authorized in the controlling statute.
But the regulatory cascade that will ensue from EPA’s endangerment finding has no clear congressional authorization. Indeed, regulations emanating from the endangerment finding are likely to be more costly and intrusive than any climate bill Congress has considered and either rejected or failed to pass.
We are on the brink of an era of runaway regulation without representation. Sen. Boxer complains that the Murkowski resolution is “unprecedented.” But that is only fitting, because the resolution addresses an unprecedented threat to our system of self-government.