The Environmental Protection Agency’s End-Run Around Democracy

In a recent issue of the Daily Caller, reporter Jonathan Strong asserts that EPA’s global warming regulations are “no end-run around Congress,” because “This time Congress is being held hostage by its own laws.” That’s exactly what EPA Administrator Lisa Jackson and just about every environmental advocacy group in America says. They are mistaken.

Interestingly, much of Strong’s argument leads to conclusion that EPA is engaged in an end-run. His column leaves little doubt that the Clean Air Act (CAA) is a stunningly inappropriate framework for regulating greenhouse gases. That should make him wary of environmentalist claims that EPA is just carrying out the will of Congress.

Strong notes that President Obama and others depicted CAA regulation of greenhouse gases as “heinously bad” when they wanted to spook Republicans into supporting cap-and-trade legislation as a lesser evil. But why would Congress authorize something heinously bad? Granted, Congress does many foolish things, but it has never, ever voted to put EPA in charge of making climate policy.

Strong observes that it “hardly makes sense to hold individual states accountable for their greenhouse gas levels when every pollution source across the planet is contributing to that level.” Yet once EPA issued its December 2009 Endangerment Rule, it set a fateful precedent that could compel the agency to do just that.

The Endangerment Rule is EPA’s official finding that greenhouse gases endanger public health and welfare. Logically, given that premise, EPA must now develop national ambient air quality standards (NAAQS) for greenhouse gases, and then compel states to reduce atmospheric levels within five or at most 10 years. The Center for Biological Diversity and other groups are petitioning EPA to establish a NAAQS for carbon dioxide (CO2) set at 350 parts per million (ppm) — about 40 ppm below the current concentration (390 ppm). Yet not even a severe depression cutting global GDP and emissions to, say,1970 levels, would stop CO2 concentrations from rising.

In short, applying the CAA to greenhouse gases threatens to turn the Act into a de-industrialization mandate, a national economic suicide pact. Yet one of the statute’s core purposes, declared in the first section, is “to promote . . . the productive capacity of the population.” When did Congress vote to rescind that provision?

Strong notes that another “major lever” of the law is the requirement, once greenhouse gases become regulated air pollutants, for newly built or modified industrial facilities to install “best available control technology.” However, Strong concedes, because no cost-effective technology exists to “scrub” greenhouse gases out of emissions, “requiring best technology is inherently limited, even irrational.”

Indeed, he continues, regulated entities have a “unique financial incentive” to cheat on any type of greenhouse gas control system. Unlike other gases EPA regulates, the quantity of CO2 emissions “is basically a factor of how much output there is by a facility.” Ergo, regulating greenhouse gases has a unique potential to curb output and economic growth.

That’s a major reason why climate policy is intensely controversial; why the Senate, via the July 1997Byrd-Hagel resolution, preemptively rejected the Kyoto Protocol; and why the Waxman-Markey cap-and-trade bill became politically radioactive not long after it passed in the House. It’s also why Congress has never even come close to voting for EPA to establish best available control technology standards for greenhouse gases.

Strong acknowledges that applying CAA permitting requirements to greenhouse gases would produce an administrative “meltdown,” a “bureaucratic Armageddon.” EPA and its state counterparts would have to process an estimated 41,000 preconstruction permit applications per year (instead of 280) and 6.1 million operating permits per year (instead of 15,000). The permitting programs would crash under their own weight, crippling both environmental enforcement and construction activity while exposing millions of non-permitted firms to new litigation risks. A more potent Anti-Stimulus Program would be hard to imagine. This is not what Congress authorized when it enacted the CAA in 1970, nor when it amended the statute in 1977 and 1990.
To avoid such “absurd results,” EPA issued its so-called Tailoring Rule. It revises the statutory definitions of “major emitting facility” so that CAA permitting programs apply only to very large CO2emitters such as coal-fired power plants, refineries, and cement production facilities. Strong says the Tailoring Rule “significantly bend[s] the letter of the law,” commenting: “Whether that rather sizeable legal leap withstands judicial scrutiny is an open question.” That’s too charitable. “Tailoring” is bureaucrat-speak for “amending.” To avoid absurd results and a political backlash, EPA now presumes to play lawmaker and amend the statute. When did Congress give EPA the okay to flout the separation of powers?

Strong notes that the CAA was enacted in 1970, “before global warming was even on the radar map.” Exactly! And after 20-plus years of global warming advocacy by the U.N., the environmental movement, regulatory bureaucrats, mainstream media, and rent-seeking corporations; and despite pressure from the White House, Democratic control of both the House and Senate, and a $100 million lobbying surge campaign, Congress in 2010 again rejected cap-and-trade. Are we then to suppose that back in 1970, when global warming was not even a gleam in Al Gore’s eye, Congress authorized EPA to implement a more “heinous” version of the same, but just forgot to tell anybody?

Global warming was so off the radar scope in 1970 that the terms “greenhouse gas” and “greenhouse effect” do not even occur in the CAA. Yes, the CAA as amended in 1990 mentions “carbon dioxide,” but only once, in Section 103(g), a provision dealing with “non-regulatory” emission-control strategies and technologies. The provision concludes with an admonition: “Nothing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements.” This language would have no legal effect, and would be pointless to include in the provision, if EPA already possessed separate authority, under other provisions of the Act, to regulate CO2.

Similarly, the 1990 CAA mentions “global warming” once, in Section 602(e), which requires EPA to “publish” (i.e. study) the “global warming potential” of ozone-depleting substances. Another admonition immediately follows: “The preceding sentence shall not be construed to be the basis of any additional regulation under” the Act. This language too would be useless verbiage if EPA since 1970 already possessed authority under other CAA provisions to regulate substances based on their “global warming potential.”

The admonitory statements in 103(g) and 602(e) make sense only if Congress wanted to clarify that, notwithstanding the 1990 CAA’s references to “carbon dioxide” and “global warming,” EPA did not have authority to regulate CO2 and other gases for climate change purposes. The 5-4 Supreme Court majority in Massachusetts v. EPA, however, bizarrely construed those statements as merely indicating that Congress in 1990 gave EPA no additional authority to regulate greenhouse gases.

But just where and how in the 1970 CAA did Congress provide authority for greenhouse gas regulation, according to the Court?

The Court argued that, under CAA Section 302(g), CO2 and other greenhouse gases are “air pollutants” because they are “emitted into” or “otherwise enter” the air. The CAA exists, of course, to control and prevent “air pollution.” Therefore, the Court concluded, EPA has authority to regulate such substances if the agency determines that greenhouse gases endanger public health or welfare.

But 302(g) does not define “air pollutant” as anything “emitted.” It says that “air pollution agents” – substances that damage air quality – are “air pollutants” when emitted. The 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 damages air quality. Carbon dioxide – like water vapor, the atmosphere’s main greenhouse gas – is a necessary constituent of clean air.

As Justice Antonin 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 as an “air pollutant” the moment it moves or circulates, which is plainly absurd.

Section 302(g) is only two sentences long. The Court not only ignored a key term (“air pollution agent”) of the first sentence, it also ignored the entire second sentence, which holds that a “precursor” of a previously designated air pollutant is also an “air pollutant.” Congress would not have needed to say that if, as the Court opined, anything emitted per se is an “air pollutant,” because precursors form air pollutants only by being emitted.

Courts are not supposed to assume that Congress pads statutes with surplus verbiage. For a court to ignore a key term and an entire sentence of a two-sentence definition, in a case where the provision’s meaning is critical to the outcome, is not kosher. The entire greenhouse of cards EPA is now putting in place, with all its enormous economic and political ramifications, rests on the Court’s tortured reading of the CAA definition of “air pollutant.”

Once this is recognized, Strong’s most plausible statutory defense of EPA’s greenhouse regulatory program melts away. Alluding to CAA Section 302(h), Strong notes that EPA is supposed to regulate air pollutants that damage public “welfare” via undesirable effects on various resources including “weather” and “climate.” True but irrelevant, because, as just shown, the Court had to bowdlerize the text to make CO2 fit the definition of “air pollutant.”

Weather and climate of course affect public welfare, which is why so many retirees migrate each year from colder states to the Sun Belt. However, Strong errs when he cites a book by environmental law professor Harold Reitze as affirming that Section 302(h) authorizes EPA to regulate greenhouse gases. On the very page Strong cites, Prof. Reitze says: “The legislative history of the 1990 CAA Amendments demonstrates that GHGs [greenhouse gases] are not pollutants for the purposes of subchapter II of the CAA. . .” That is, they are not pollutants for purposes of the provision under which EPA is regulating greenhouse gases from new motor vehicles. Such regulation is what triggers the CAA permitting requirements for stationary sources of greenhouse emissions, setting the stage for “bureaucratic Armageddon.”

At bottom, though, the controversy over EPA regulation of greenhouse gases is constitutional, not legal. Regardless of one’s views on the fine points of statutory interpretation or legislative history, this much is undeniable. EPA is making climate policy, putting in place regulatory architecture to limit the production and use of the carbon-based fuels that supply 85% of U.S. energy. And EPA is doing so without Congress ever voting on the agency’s plans, and indeed despite Congress’s recent rejection of less “heinous” versions of the same agenda. Unless stopped, EPA’s power grab, which also includes the agency’s “tailoring” (amending) of statutory law, will make a mockery of our claim to be a self-governing people.

Jonathan Strong sees much that is problematic in EPA’s greenhouse gas regulatory program. Nonetheless, he misses the forest for the trees. The EPA debate boils down to a very simple issue. Who shall determine the content and direction of national policy — elected representatives accountable to the people at the ballot box, or non-elected bureaucrats, trial lawyers, and activist judges appointed for life? The Constitution permits only one answer to that question.