- About CEI
- Support CEI
June 07, 2010
Originally published in The National Journal
Overturning EPA’s endangerment finding is a constitutional imperative. Unless stopped, EPA will be in a position to determine the stringency of fuel economy standards for the auto industry, set climate policy for the nation, and even amend the Clean Air Act — powers never delegated to the agency by Congress.
Worse, America could end up with a pile of greenhouse gas regulations more costly and intrusive than any climate bill or treaty the Senate has declined to pass or ratify, yet without the people’s representatives ever voting on it.
Sen. Lisa Murkowski’s resolution of disapproval (S.J.Res.26) would nip this mischief in the bud by overturning the endangerment finding. The resolution puts a simple question squarely before the Senate: Who shall make climate policy — lawmakers who must answer to the people at the ballot box or politically unaccountable bureaucrats, trial lawyers, and activist judges appointed for life?
Precisely because S.J.Res.26 would restore political accountability to climate policy making, regulatory zealots are waging smear campaigns against it. Climate Progress calls it “polluter crafted” (impossible, because the form and language of the resolution are fixed by the Congressional Review Act). MoveOn.Org warns the resolution condemns many Americans to “smoke the equivalent of a pack a day just from breathing the air” (nonsense – just one cigarette delivers 12-27 times the daily dose of fine particulate matter that non-smokers get in cities with the most polluted air). Environmental Defense Action Fund claims the resolution will give corporate polluters a “bailout” (also impossible, because S.J.Res.26 is not a tax or spending bill).
Sen. Barbara Boxer (D-Calif.) tries to equate S.J.Res.26 with a hypothetical vote to overturn the Surgeon General’s famous report linking cigarette smoking to cancer. We’re supposed to be scandalized that Congress would attempt to repeal science and keep us in the dark about threats to our health and welfare. This too is calumny.
First, the Surgeon General’s report was purely an assessment of the medical literature. It did not even offer policy recommendations. If the endangerment finding were simply one agency’s review of the science, Congress would have no business voting on it either. Unlike the Surgeon General’s report, the endangerment finding is both trigger and precedent for sweeping policy changes Congress never approved.
Second, although some oppose the endangerment finding on scientific grounds, S.J.Res.26 neither takes nor implies a position on climate science. The resolution would overturn the “legal force and effect” of the endangerment finding, not its reasoning or conclusions. The resolution is a referendum not on climate science but on the constitutional propriety of EPA making climate policy without new and specific statutory guidance from Congress.
Former EPA Administrator Russell Train contends that Congress already signed off on whatever greenhouse gas regulations EPA adopts. When? Why, back in 1970 – decades before global warming became a political issue – when Congress enacted the Clean Air Act. Congress authorized EPA to evaluate individual pollutants, and established a scientific criterion as the sole trigger for action: whether a pollutant “may reasonably be anticipated to endanger” public health or welfare. EPA bases its greenhouse gas regulations on its endangerment finding, so the Clean Air Act is working “as Congress intended,” Train concludes.
But all this proves is that EPA has jumped through the requisite procedural hoops, which nobody disputes. That in no way demonstrates that Congress meant to regulate greenhouse gases through the Clean Air Act. Train ignores the obvious. 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 approved the far-reaching regulatory ramifications of EPA’s endangerment finding.
As even EPA admits, applying the Act “literally” (i.e. lawfully, statutorily) to CO2 leads to “absurd results.” For example, EPA and its state counterparts would have to process an estimated 41,000 pre-construction permits annually (instead of 280) and 6.1 million operating permits annually (instead of 14,700). Such workloads vastly exceed agencies’ administrative resources. Ever-growing backlogs would paralyze environmental enforcement, block new construction, and thrust millions of firms into legal limbo.
Train praises Administrator Lisa Jackson for taking a “measured approach” and demonstrating her “sensitivity to economic concerns” by exempting, for six years, all but the largest CO2 emitters from permitting requirements. But the Clean Air Act nowhere gives the Administrator the authority to suspend or revise the permitting programs’ applicability thresholds. EPA’s so-called Tailoring Rule is actually an amending rule.
To pound the square peg of climate policy into the round hole of the Clean Air Act, EPA has to play lawmaker and effectively change the statute. This breach of the separation of powers only compounds the constitutional crisis inherent in EPA’s hijacking of fuel economy regulation and climate policymaking.
The importance of the vote on S.J.Res.26 is difficult to exaggerate. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance.