Overturning EPA’s Endangerment Finding Is a Constitutional Imperative

Overturning EPA’s Endangerment Finding Is a Constitutional Imperative

May 24, 2010
Originally published in Pajamas Media

This week, the U.S. Senate is expected to vote on a “resolution of disapproval,” sponsored by Republican Senator Lisa Murkowski of Alaska, to stop the U.S. Environmental Protection Agency from “enacting” controversial global warming policies through the regulatory back door.

The importance of this vote is difficult to exaggerate. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance.

Who Shall Make Climate Policy?

The Murkowski resolution would overturn the EPA’s “endangerment finding,” a December 2009 rulemaking in which the agency concluded that greenhouse gas emissions endanger public health and welfare. The endangerment finding is both trigger and precedent for sweeping policy changes that Congress never approved. America could end up with a regulatory regime more costly and intrusive than any climate bill or treaty the Senate has declined to pass or ratify, yet without people’s representatives ever voting on it.

Unless stopped, the 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.

The Murkowski 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?

It might seem amazing that any senator would oppose such a measure. After all, senators take an oath to “support and defend” the Constitution, which vests “all legislative powers” in Congress (i.e., not in administrative agencies or courts). However, regulatory zealotry has a long history of trampling on constitutional principle, and many lawmakers would simply prefer to let the non-elected bureaucrats at the EPA take the heat for “enacting” costly climate policies.

Power Grab

Let’s examine in somewhat more detail the unauthorized powers the EPA will amass unless the endangerment finding is overturned.

For starters, the endangerment finding compels the EPA to establish greenhouse gas (GHG) emission standards for new motor vehicles. About 95% of vehicular GHGs are carbon dioxide (CO2) emissions from gasoline combustion. Because no commercial technologies exist to filter CO2 emissions from automobile tailpipes, automakers can significantly reduce the quantity of CO2 emitted per mile only by reducing the quantity of gasoline combusted per mile.

Thus, by setting GHG emission standards, the EPA can largely determine the stringency of new-car fuel economy standards. Congress should object, because the Clean Air Act gives EPA no authority to regulate fuel economy. Congress delegated that power to another agency (the Department of Transportation) under another statute (the Energy Policy and Conservation Act).

Once the EPA’s motor vehicle GHG standards take effect, CO2 by definition becomes a “regulated air pollutant.” That, in turn, makes any “major stationary source” of CO2 emissions subject to additional regulation under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. Firms will need to obtain PSD and Title V permits if they plan to build, modify, or operate “major” sources of CO2 emissions.

Similarly, the endangerment finding will empower the EPA to establish GHG “performance standards” for scores of industrial categories of emitters, such as power plants, refineries, and steel mills.

Thus, by issuing an endangerment finding, the EPA will deal itself into a position to control the economy — both mobile and stationary sources — for climate change purposes. Yet the Clean Air Act gives the EPA no such authority. Congress enacted the Clean Air Act in 1970, decades before global warming was even a topic of congressional debate. That is why phrases like “greenhouse gas,” “greenhouse effect,” and “global climate change” appear nowhere in the statute.

Absurd Results

Compelling evidence that Congress never intended to regulate greenhouse gases through the Clean Air Act unwittingly comes from the EPA itself. As the EPA explains in its so-called “tailoring rule,” unless the EPA “tailors” — that is, amends — the Clean Air Act permitting programs, the endangerment finding leads inexorably to “absurd results.”

Here’s why. A stationary source is “major” if it has a potential to emit 250 tons per year of a “regulated air pollutant” under the PSD pre-construction permitting program and 100 tons per year under the Title V operating permits program. These “applicability thresholds” make sense when applied to bona fide air pollutants, such as particulate matter and smog-forming chemicals, which are emitted in the threshold amounts only by large industrial facilities.

In contrast, an immense number and variety of previously unregulated entities — office buildings, big box stores, apartment complexes, small manufacturers, commercial restaurants, hospitals, churches, and schools — emit 100-250 tons per year of CO2. All become vulnerable to new regulation, penalties, and litigation under the PSD and Title V provisions once CO2 becomes a “regulated air pollutant.”

The EPA and its state counterparts will have to process an estimated 41,000 PSD permits annually (instead of 280) and 6.1 million Title V permits annually (instead of 14,700), the agency estimates. Such workloads vastly exceed agencies’ administrative resources. If EPA applies the Clean Air Act as written to CO2, permitting agencies will develop huge, ever-growing backlogs that will bog down environmental enforcement, block new construction, and thrust millions of firms into legal limbo. Needless to say, President Obama does not want this red ink nightmare unfolding on his watch.

Rather than argue on statutory grounds that it cannot issue an endangerment finding without producing absurd results destructive of congressional intent, the EPA plans to amend the Act. Specifically, the EPA intends for six years to exempt from PSD and Title V all sources emitting less than 50,000 tons per year of CO2-equivalent greenhouse gases, even though, as noted, the statutory applicability thresholds are 250 and 100 tons per year.

In summary, the EPA is poised to breach the separation of powers in three ways — first, by determining fuel economy standards (a power Congress delegated to another agency), next by setting climate policy for the nation (a matter about which Congress is still deliberating), and finally by effectively amending the statutory definition of “major source.”

Smear Campaign

Sen. Murkowski’s resolution of disapproval would safeguard both the economy and the democratic process by nipping all this mischief in the bud.

Precisely because the resolution would restore constitutional discipline to climate policymaking, opponents are mounting a smear campaign against it.

Climate Progress calls the Murkowski resolution the “Dirty Air Act,” contending it is “polluter crafted.” Nice try, but that’s impossible. The form of the resolution is fixed by Section 802 of the Congressional Review Act. The only choices allowed are which agency and which final rule to insert in the blank spaces. There is no room for “crafting,” whether by “polluters” or anyone else. If there were an award for hypocritical sanctimony, Climate Progress would be a top contender. They support both the Waxman-Markey and Kerry-Lieberman cap-and-trade bills, which are “polluter-crafted” from top to bottom.

MoveOn.org, in TV ads, warns that the Murkowski resolution will “roll back” the Clean Air Act, which supposedly is an outrage because “many Americans already smoke the equivalent of a pack a day just from breathing the air.” That is complete rubbish. The resolution will not affect any policy, program, or regulation the EPA administers to protect air quality. Moreover, one cigarette delivers 12-27 times the daily dose of particulate matter (PM2.5) that non-smokers get in cities with the highest PM2.5 levels. No Americans anywhere smoke a pack a day or even one cigarette a day just from breathing the air.

Environmental Defense Action Fund claims, in radio ads, the Murkowski resolution is a “polluter bailout bill.” For shame! EDAF cynically exploits taxpayers’ anger at wealth transfers to fat-cat corporations to advance a big-government agenda that many of those same taxpayers oppose.

Sen. Barbara Boxer (D-Calif.) claims that overturning the endangerment finding is equivalent to overturning the Surgeon General’s report linking cigarette smoking to cancer. We’re supposed to be scandalized that Congress would try to repeal science and keep us in the dark about threats to our health and welfare. This too is nonsense, for two reasons.

First, the Surgeon General’s report was purely an assessment of the medical literature. It had no legal force or effect. 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. But, to repeat, unlike the Surgeon General’s report, the endangerment finding is both trigger and precedent for costly and complex policy changes Congress never approved.

Second, although some may oppose the endangerment finding on scientific grounds, the Murkowski resolution 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.

Although you’d never guess from the attacks to which she has been subjected, Sen. Murkowski is not a climate skeptic, nor does she oppose greenhouse gas regulation in principle. Her position is simply that climate policy is too important to be made by non-elected bureaucrats. That ought to be a proposition on which all Senators can agree.