It’s a sure sign that a government agency has become overmighty when it vastly increases its budget, grabs power unconstitutionally and treats Congress with contempt. All of this applies to the Environmental Protection Agency. Unless Congress acts quickly to curb the EPA’s power, it will become a huge drag on the economy. Few bodies are more deserving of cutbacks now. This year, EPA’s budget (which had hovered at $7 billion to $8 billion since 1997) increased by 34 percent, to more than $10 billion for the first time ever. The budget increase does not translate into an upsurge in staffing level – which remains lower than its apex of more than 18,000 workers in 1999 – but instead represents much more patronage in the form of grants to states.
This increased patronage comes at a time when the EPA is accruing much more power. Its finding under the Clean Air Act that greenhouse gases endanger public health and welfare goes way beyond the powers of the act. The agency has decided it has the power to:
c License California and other states to adopt nonfederal fuel-economy standards within their borders.
c Act as co-equal (or even senior partner) with the National Highway Traffic Safety Administration (NHTSA) in setting fuel-economy standards for the auto industry.
c Establish climate and energy policy for the nation.
c "Tailor," that is, amend, the Clean Air Act to avoid an administrative debacle of its own making.
As my colleague Marlo Lewis has pointed out, in each of these cases, the EPA is ignoring the plain language of the statutes and, in some cases, the constitutional requirements of the Supremacy Clause and separation of powers.
The details of each of these actions are complicated, but the basic thrust of this four-step power grab is as follows.
By granting California the power to ignore federal fuel-economy standards, the EPA created a regulatory patchwork that imposes significant burdens on the auto industry.
This led to the White House brokering a deal whereby the EPA muscles in on the NHTSA’s statutory authority to regulate fuel-economy standards, something for which the EPA has no statutory authority.
The EPA claims this then compels it to regulate greenhouse gas emissions from stationary sources, thereby making it the effective arbiter of national climate policy – even as Congress debates what to do about the issue.
Even the EPA seems to recognize the absurdity of the resulting regulations under the language of the Clean Air Act – which would lead to the EPA having to issue permits for fast-food franchises and large apartment buildings to emit greenhouse gases – so the agency took upon itself the power to tailor statutory language, thereby playing lawmaker, to avoid the regulatory debacle which it itself had put in motion.
Fortunately, some lawmakers have caught on to what the EPA is up to. Sen. Lisa Murkowski, Alaska Republican, was so concerned that she wrote to EPA Administrator Lisa Jackson, asking 13 simple questions about the proposed course of action. The reply she received was so evasive that it answered only two of the questions – and partially at that.
Congress may soon get its first real opportunity to rein in this rogue agency. Sometime between now and May 25, the Senate is expected to vote on Mrs. Murkowski’s Congressional Review Act (CRA) resolution of disapproval. This measure would veto the legal force and effect of EPA’s endangerment finding. The EPA’s nongovernmental allies are so worried about this resolution that they have engaged in a smear campaign, accusing Mrs. Murkowski and others of seeking to impose a "Dirty Air Act." She has not been intimidated, though, and her proposal is likely to come to a vote.
A rogue regulatory agency is like an oil tanker with sails. Once in motion, it takes a lot to stop it. Congress can take the wind out of the EPA’s sails through the Murkowski resolution of disapproval and a significant reduction in the agency’s budget.
On the other hand, if the EPA gets away with this power grab, we can expect further abuses of its authority in relation to the Clean Water Act and the National Environmental Protection Act. If it gets its way, the agency’s $10 billion budget will look like chicken feed.