Will Congress Stop EPA’s End-Run around Democracy?

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 through the regulatory backdoor.

Today, a congressional panel will hold a hearing on legislation — the “Energy Tax Prevention Act” – to stop EPA’s power grab.

The bill, sponsored by Sen. James Inhofe (R-Okla.), Rep. Fred Upton (R-Mich.), and Rep. Ed Whitfield (R-Ky.), prohibits EPA from using the Clean Air Act to ‘enact’ costly controls on GHGs such as carbon dioxide (CO2), the inescapable byproduct of the fossil fuels that provide 85 percent of our total energy supply.

EPA acknowledges that regulating GHGs via the Clean Air Act (CAA) leads to “absurd results” inimical to congressional intent. For example, EPA would have to extend CAA pre-construction and operating permit requirements, intended solely for large industrial facilities, to literally millions of non-industrial facilities such as office buildings, big box stores, and restaurants.

To avoid an administrative morass that would both paralyze environmental enforcement and freeze economic development, EPA decided to “tailor” – that is, amend – the statute’s numeric definitions of “major emitting facility” to exclude all but the largest GHG emitters from CAA permitting requirements.

But such “tailoring” only compounds the constitutional crisis created by EPA’s attempt to dictate climate policy to the nation.

EPA can neither make climate policy nor amend the CAA without flouting the separation of powers.

EPA claims it is acting “under court order.” Not so. In Massachusetts v. EPA (2007), the Supreme Court said EPA need not make an endangerment determination – the trigger for regulatory action – if it could provide statutory reasons for “inaction.”

The statutory reason is now obvious. EPA cannot apply CAA regulatory provisions to GHGs without subjecting millions of non-industrial facilities to CAA permitting requirements, crippling both environmental protection and economic development, contrary to congressional intent.

Had counsel for EPA alerted the Court to the “glorious mess” an endangerment finding would create, Mass. v. EPA might 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.

More climate regulations are in the pipeline, such as GHG industrial performance standards, which could be used to suppress electricity generation from coal, the most affordable fuel source in many markets.

Looking further ahead, EPA’s Endangerment Rule logically commits the agency to establish national ambient air quality standards (NAAQS) for GHGs. Environmental groups have already petitioned EPA to adopt NAAQS for CO2 at 350 parts per million (40 ppm lower than the current concentration). Yet not even a severe depression cutting global GDP and emissions to, say, 1970 levels would stop CO2 concentrations from rising.

In short, using the CAA as a framework for climate policy potentially turns the Act into a national economic suicide pact.

At today’s hearing, EPA Administrator Lisa Jackson will likely claim that the Energy Tax Prevention Act would weaken EPA’s ability to protect asthmatic children. Nonsense! Carbon dioxide is plant food, not an asthma-triggering air pollutant.

The real issue facing Congress is very simple. Who shall determine the content and direction of national policy — elected representatives accountable to the people at the ballot box, or non-elected bureaucrats? Our Constitution permits only one answer to that question.