The EPA's Shocking Power Grab

The EPA's Shocking Power Grab

May 18, 2010
Originally published in Forbes.com

The U.S. Environmental Protection Agency is carrying out one of the biggest power grabs in American history. The agency has positioned itself to regulate fuel economy, set climate policy for the nation and amend the Clean Air Act--powers never delegated to it by Congress. It has done this by declaring greenhouse gas emissions a danger to public health and welfare, in a proceeding known as the "endangerment finding."

On Tuesday the U.S. Senate will debate and vote on Alaska Sen. Lisa Murkowski's resolution of disapproval to overturn the endangerment finding. The resolution is absolutely necessary to restore democratic accountability in climate policymaking.

If allowed to stand, the EPA's endangerment finding will trigger a regulatory cascade through multiple provisions of the Act. America could be burdened with a regulatory regime more costly than any climate bill Congress has rejected or declined to pass, yet without the people's representatives ever voting on it.

Consider how the endangerment finding will expand the EPA's power beyond any plausible congressional mandate.

To begin with, the finding compels the EPA to establish greenhouse gas emission standards for new motor vehicles. About 95% of all vehicular greenhouse gas emissions are carbon dioxide (CO2) emissions from motor fuel combustion. Because there is no commercially proven technology to capture CO2 tailpipe emissions, the principal way to reduce the amount of CO2 emitted per mile is to reduce the amount of fuel consumed per mile. In other words, greenhouse gas emission standards for automobiles are basically fuel economy standards by another name. By empowering the EPA to set greenhouse gas emission standards, the endangerment finding also empowers the EPA to determine the stringency of fuel economy standards, even though the Clean Air Act gives the EPA no such authority.

Once the greenhouse gas emission standards go into effect, CO2 becomes a "regulated air pollutant" and, thus, automatically subject to additional regulation under the Act's Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. Under the Act, a firm must obtain a PSD permit before it can build or modify a "major stationary source" of regulated air pollutants, and obtain a Title V permit before it can operate such a source. The problem is that an immense number and variety of previously non-regulated entities--big box stores, office buildings, apartment complexes, small manufacturers, even commercial kitchens--emit enough CO2 to qualify as "major" sources.

By the EPA's own admission, applying PSD and Title V to CO2 leads to "absurd results." The EPA and its state counterparts will have to process approximately 41,000 PSD permit applications per year (instead of 280), and 6.1 million Title V permit applications per year (instead of 14,700). Agencies' administrative resources will be overwhelmed, producing ever-growing backlogs that slam the brakes on new construction and force millions of firms to operate in legal limbo. A more potent anti-stimulus package would be hard to imagine.

To avert a red ink nightmare, the EPA proposes to "tailor" the permitting programs so that they exempt for six years all sources emitting less than 50,000 tons per year (TPY) of CO2-equivalent greenhouse gases. But the Act plainly states that a source is subject to PSD if it has the potential to emit 250 TPY of a regulated air pollutant and Title V if it has a potential to emit 100 TPY. In reality, the EPA proposes to amend the statute. This breach of the separation of powers only compounds the constitutional crisis inherent in the EPA's bid to hijack fuel economy regulation and climate policymaking.

Even if courts uphold EPA's tailoring rule, it's anybody's guess how many smaller sources EPA will try to regulate after 2016. Government burdens have a habit of ratcheting up over time.

The tailoring rule also provides no protection from the endangerment finding's most absurd result--rulemakings to establish National Ambient Air Quality Standards (NAAQS), set below current atmospheric concentrations, for greenhouse gases. Environmental litigation groups are only acting on the obvious implication of the EPA's assertion that the root cause of endangerment is the "elevated concentration" of greenhouse gases when they demand that the EPA initiate such rulemakings.

The economic consequences would be devastating. Even a global depression lasting several decades would not be enough to lower CO2 concentrations from today's level--roughly 390 parts per million--to 350 ppm, the new politically correct "stabilization" target advocated by former Vice President Al Gore, the Center for Biological Diversity and numerous other environmental groups. Yet under the Clean Air Act, states are obligated to attain NAAQS within five years or, at most, 10 years. The endangerment finding thus sets the stage for environmental activists to transform the Act into a deindustrialization mandate via litigation. The Murkowski resolution would nip all this mischief in the bud.

A strong case can be made that the EPA's endangerment finding is scientifically flawed. However, the Murkowski resolution is a referendum not about climate science but about the constitutional propriety of the EPA exercising powers not delegated by Congress. The resolution would overturn the "legal force and effect" of the EPA's endangerment finding, not the EPA's scientific reasoning or conclusions.

Who should make climate policy--the people's representatives or politically unaccountable bureaucrats, trial lawyers and unelected activist judges appointed for life? That is the sole question raised by the Murkowski resolution. The U.S. Constitution permits only one answer.

Sen. Barbara Boxer, D-Calif., warns 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 is representative democracy. And the democratic process is more valuable than any result that the EPA might obtain by doing an end run around it. Of all people, U.S. senators should understand this basic precept of our constitutional system.