Let Congress Decide

A political advocacy coalition this week started a statewide advertising campaign warning North Dakotan Senators Byron Dorgan and Kent Conrad against voting for the “Dirty Air Act.” The radio spot insinuates that the Senate is considering legislation that would “gut” the Clean Air Act, but this is untrue. In fact, there is a growing bipartisan effort in Congress to restore the Clean Air Act to its original meaning.

The Act was written in 1970, at a time when scientists fretted about global cooling. Now the Obama administration is trying to use it to stop global warming. But Congress never intended for the Clean Air Act to regulate greenhouse gases thought to cause climate change, and for good reason—doing so would create a regulatory quagmire that would strangle an economic recovery.

Congress designed the Clean Air Act forty years ago in order to regulate smog, not greenhouse gases. Whereas an industrial smog polluter emits hundreds of tons in a year, even a moderately sized building can emit an equivalent quantity of greenhouse gas. If the Clean Air Act were to apply to greenhouse gases, then virtually every mansion, apartment, and office would become subject to Environmental Protection Agency inspectors.

It would be a nightmare, which is precisely why Members of Congress never have voted to subject greenhouse gases to the Clean Air Act. The Supreme Court, however, bizarrely determined in 2007 (Massachusetts v EPA) the Clean Air Act could be used to regulate greenhouse gases, even though Michigan Representative John Dingell, who authored the Clean Air Act, said that “This [regulating greenhouse gases] is not what was intended by the Congress.”

The Supreme Court ruled that the EPA could regulate greenhouse gases, not that the EPA must regulate. Former President George W. Bush administration had the good sense to let sleeping dogs lie. President Obama, on the other hand, thought he could leverage the Supreme Court’s decision. He had campaigned on a promise to deliver a “cap-and-trade” program to reduce greenhouse gas emissions, but he is having trouble getting it through Congress. So the President devised a high-stakes game of chicken: He is threatening to unleash the EPA in order to coerce climate legislation out of Congress.

These are hyper-partisan times, but both parties in Congress can agree that they don’t like being pushed around by the President. In the Senate, Republican Senator Lisa Murkowski (Alaska) has joined with Democratic colleagues Blanche Lincoln (Arkansas), Ben Nelson (Nebraska), and Mary Landrieu (Louisiana) to sponsor legislation that would strip the Environmental Protection Agency of the authority to regulate greenhouse gases under the Clean Air Act. This is the same legislation that Sens. Conrad and Burns are considering, the so-called “Dirty Air Act.” In the House, North Dakotan Democrat Rep. Earl Pomeroy is offering similar legislation.

Instead of insults, these legislators should be lauded for trying to save the American economy. Even the EPA admits that regulating greenhouse gases under the Clean Air Act is “absurd.” To avoid having to shackle the entire economy, the EPA wants to increase the threshold for the regulation of greenhouse gas “pollution” under the Act. Otherwise, the EPA argues, it will be forced to regulate almost everything, which would be, the EPA concedes, “absurd.”

But it’s not that simple. The EPA is part of the executive branch of government, and it is unconstitutional for the executive to legislate. The EPA’s attempt to alter the text of the Clean Air Act seems to fly in the face of the separation of powers, one of America’s founding political principles. There will be lawsuits, and if the courts rule that the EPA overreached, the American economy will become subject to an unprecedented regulatory onslaught.

The Obama administration is willing to take this risk. Is North Dakota’s Senate delegation willing to join him?