Cap-and-tax is Dead but Kyotoism is Alive and Well at the EPA

Cap-and-tax may be dead in Congress but the Kyoto agenda of stealth energy taxes marches on at the Environmental Protection Agency (EPA).

Although the Clean Air Act was enacted in 1970, years before global warming was a gleam in Al Gore’s eye, and even though the statute says nothing about greenhouse gases (GHGs), EPA is now “legislating” climate policy. How did this happen?

In Massachusetts v. EPA (April 2007), the Supreme Court held that carbon dioxide (CO2) and other GHGs are “air pollutants” because they are “emitted into” or “otherwise enter” the air. The Clean Air Act exists, of course, to control and prevent air pollution.

But Court decoupled the term “air pollutant” from its plain English meaning – as if any “emitted” substance is an “air pollutant” whether or not it actually dirties, fouls, or otherwise pollutes the air.

As Justice Scalia quipped in dissent, as defined by the Court, “everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’” Indeed, even absolutely clean, pollution-free air qualifies the moment it moves or circulates.

From that absurd premise springs all the “absurd results” EPA now struggles to avoid by amending the statute through its so-called Tailoring Rule.

EPA claims that it is regulating GHGs “under court order.” Not so. The Court said EPA need not make an endangerment determination – the prerequisite and trigger for regulatory action – as long as the agency grounds its reason for “inaction” in the statute.

 Here’s the now-obvious statutory reason. Finding endangerment compels EPA to establish GHG emission standards for new motor vehicles, which in turn makes CO2 a “regulated air pollutant,” which in turn subjects millions of non-industrial facilities to Clean Air Act pre-construction and operating permit requirements, crippling both environmental protection and economic development, contrary to congressional intent.

As EPA acknowledges, regulating GHGs via the Clean Air Act leads to “absurd results.” That EPA must now violate the separation of powers and “tailor” (amend) the Act to avoid absurdity is strong evidence that the Court misread the Act.

Had counsel for EPA alerted the Court to the “glorious mess” a GHG endangerment finding would create, Mass. v. EPAmight well have been decided differently. But then EPA would not now be in a position to regulate CO2, the most ubiquitous byproduct of industrial civilization.

EPA is nothing if not the master of bureaucratic self-dealing. EPA’s GHG Tailpipe Rule, for example, not only is a springboard for EPA regulation of stationary sources, it also empowers EPA to determine the stringency of motor vehicle fuel-economy standards (because CO2 from gasoline combustion accounts for 94% of all motor vehicle GHG emissions). Yet Congress authorized the Department of Transportation, not EPA, to regulate fuel economy.

More climate regulations are in the pipeline, such as EPA’s recently proposed GHG standards for heavy-duty vehicles, or in development, such as GHG industrial performance standards, which could be used to suppress electricity generation from coal, America’s most abundant and affordable fuel source.

Looking further ahead, the Endangerment Rule logically commits EPA to establish national ambient air quality standards (NAAQS) for GHGs. Environmental groups have already petitioned EPA to establish NAAQS for CO2 at 350 parts per million (40 ppm lower than the current concentration). Not even a global depression lasting several decades would be sufficient to achieve that objective. Even de-industrializing America might not be enough.

Momentous decisions affecting potentially trillions of dollars in cumulative GDP should be based on something more solid than a tortured reading of the definition of “air pollutant.” That is an absurd way to make public policy.

The good news is that Congress can set things right. Overturning EPA’s Endangerment Rule is the best option, since it would negate all of EPA’s GHG regulations. Next best would be a beefed up version of West Virginia Sen. Jay Rockefeller’s bill to suspend GHG regulation of stationary sources for two years.

How about this – suspend GHG regulation of stationary sources until such time as Congress votes to remove the suspension?