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Climate Policy Crash - The EPA is poised to regulate greenhouse gases without a legislative fix.
National Review Online ^ | January 27, 2009 | Jonathan H. Adler

Posted on 01/27/2009 3:25:05 PM PST by neverdem








Climate Policy Crash
The EPA is poised to regulate greenhouse gases without a legislative fix.

By Jonathan H. Adler

Climate change remains at the top of President Obama’s agenda, current economic woes notwithstanding. Obama recently inveighed against energy sources that “threaten our planet,” and several of his early appointments—including Energy Secretary Stephen Chu, science adviser John Holdren, and White House energy czar Carol Browner—signal the importance of climate-change policy to this administration. During the campaign, Obama endorsed an 80-percent reduction in greenhouse-gas emissions by 2050, and House Speaker Nancy Pelosi said she hopes to move climate-change legislation before the end of the year. California Representative Henry Waxman’s successful coup against longtime Energy and Commerce Committee Chairman John Dingell of Michigan makes congressional action more likely.

Even were Congress to have second thoughts, the climate-policy die is cast. In April 2007, the Supreme Court held, in Massachusetts v. EPA, that the U.S. Environmental Protection Agency (EPA) has the authority to regulate greenhouse gases under the Clean Air Act. Thus no new legislation is required for the Obama EPA to begin crafting rules to control the emission of carbon dioxide and other gases from automobile tailpipes, power plants, boilers, and more. Like it or not, EPA administrator Lisa Jackson and her team have ample authority to impose controls on the most ubiquitous by-product of modern industrial civilization.

Indeed, they may not have a choice. Justice Stevens’s majority opinion in Massachusetts did not command the EPA to begin regulating, but that is the practical effect of the Court’s decision. At issue was Section 202 of the Clean Air Act, which requires the EPA to impose emission standards on new motor vehicles for any air pollutants which in the EPA’s “judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” The Court decided that greenhouse gases are “air pollutants,” and so the EPA must set standards if it believes climate change “may reasonably be anticipated to endanger public health or welfare.”

The EPA would have a hard time claiming not to believe that, even if the Obama administration were so inclined: In numerous documents and statements, the agency has reiterated its belief that climate change is a significant concern, and that a gradual warming could have deleterious effects on health and welfare. Even during the Bush administration, the EPA endorsed federal action to “reduce the risk” of global warming. The EPA has done everything short of publishing a formal statement that climate change “may reasonably be anticipated to endanger public health or welfare,” and no court would readily let it off the hook. Thus, Massachusetts effectively requires the imposition of carbon-dioxide controls on new cars and trucks.

But that’s not the only regulation affected by the Court’s conclusion that greenhouse gases are air pollutants under the act. Section 111 of the act, for instance, requires the agency to set standards for some stationary sources of emissions “which may reasonably be anticipated to endanger public health or welfare.” So if the EPA must regulate automotive emissions under Section 202, it must regulate emissions from power plants and factories under Section 111 as well.

And there’s more. The act requires the issuance of permits and the imposition of technological controls on facilities that emit more than 250 tons of regulated pollutants annually. For traditional pollutants, such as sulfur oxides, these provisions capture only the really big emitters—large power plants and the like. Applied to carbon dioxide, however, the 250-ton standard could encompass many commercial and residential buildings, increasing the number of regulated facilities tenfold, if not more.

A plain reading of the Clean Air Act would also seem to require that the EPA set a National Ambient Air Quality Standard (NAAQS) for carbon dioxide, and then force state pollution-control agencies to develop plans to ensure that metropolitan areas comply. This is a fool’s errand. There is simply no way for state and local regulators to ensure that individual cities, or even larger regions, meet an air-quality standard for a globally dispersed atmospheric pollutant. Local emissions could be reduced to zero, and a given city could still violate the NAAQS because of emissions elsewhere. It would be a pointless regulatory exercise, but after Massachusetts v. EPA it is the law.

The regulatory train thus set in motion by the Supreme Court will move apace unless Congress stops it through legislative action. What should such legislation look like? Some who would prefer to replace existing Clean Air Act rules with a cap-and-trade emissions-control regime have labored under the delusion that such a regime could be adopted by administrative fiat. Unlikely. Last year a federal court struck down the Bush administration’s effort to create a regional cap-and-trade system for traditional air pollutants. If the Clean Air Interstate Rule was invalid under the Clean Air Act, there is little hope for implementing a greenhouse-gas trading system.


Another option, favored by some conservatives, is to overturn Massachusetts v. EPA with a simple statement that greenhouse gases are not pollutants under the Clean Air Act. This would correct the Supreme Court’s erroneous statutory interpretation. Such legislation has no prayer in a Democratic Congress (and would surely be vetoed anyhow).

In the meantime, retaining the status quo means suffering costly regulation. Some action is required. What are conservatives willing to offer (or agree to) in return for derailing the EPA regulatory train? Even the most die-hard climate alarmists would prefer a comprehensive legislative alternative to setting the EPA loose on greenhouse gases under current law, so there is a near-universal desire for legislative action of some sort.

Which brings us back to cap-and-trade. If administrative fiat won’t bring such a system into existence, an agreement in Congress might. Much of the business community has settled on this view, as did both major presidential candidates during the campaign. Cap-and-trade systems have some theoretical appeal, since they work the way markets do, but it would be sheer folly to impose one for greenhouse gases. For such a scheme to be effective, it would need a massive regulatory regime to ensure compliance. It would also unleash a flurry of rent-seeking as various interest groups and industries pursued advantage in the trading and allocation rules. Administered politically—as any such regime would be—it would also be likely to serve special interests over the purported goal of reducing climate-changing emissions. Insofar as cap-and-trade operates as an indirect tax (in capping emissions it will increase prices), it will be hidden from public view and undermine political accountability. (Perhaps this is why so many politicians prefer it.) Underneath its market-oriented veneer, climate cap-and-trade would be a regulatory monstrosity.

One promising alternative is climate-oriented, revenue-neutral tax reform. Congress would replace a wide range of existing federal taxes with a consumption tax based on the carbon content of fuels. Such a tax would create incentives for more efficient energy use, and thus serve the environmentalist goal of discouraging greenhouse-gas emissions—without delegating massive new regulatory authority to the EPA. A direct tax would be more transparent and more subject to democratic control than the cap-and-trade alternative. It would also serve the longstanding conservative goal of replacing taxes on income with a tax on consumption, a policy move that would make sense even if climate change were not a concern.

Some will no doubt object (indeed, my friend Chris Horner already has) that contemplating a carbon-tax deal of the sort I propose amounts to “anticipatory capitulation” designed to “buy peace” with the opposition. Not so. Barring the miraculous enactment of the Blackburn bill to overturn Massachusetts, control of greenhouse gases is inevitable. This is not a prediction about what Congress or the EPA will choose to do, but an assessment of what current law requires.

It’s an old saw that you can’t beat something with nothing. In this case, the need for a “Plan B” is especially urgent, because the train has already left the station. If stopping that train, and preventing the otherwise inevitable wreck, is important, conservatives need a climate strategy beyond opposition to existing regulations and the imposition of cap-and-trade. On this basis, and because the threat of climate change merits a serious response, conservatives should support policies to encourage and unleash innovation—as well as tax reform replacing corporate and income taxes with a carbon tax that could prevent more onerous regulation.

NRO contributing editor Jonathan H. Adler is professor of law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.
— NRO contributing editor Jonathan H. Adler is professor of law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.



TOPICS: Crime/Corruption; Culture/Society; Editorial; Politics/Elections
KEYWORDS: airquality; bho44; bhoepa; climatechange; envirowhackos; epa; globalwarming; greenhousegases; greens
We're screwed. His argument makes sense except I don't see an economic recovery with expensive energy.
1 posted on 01/27/2009 3:25:06 PM PST by neverdem
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To: neverdem

the moonbats have been implanted with brain chips that tell them every US dollar spent on “green” energy returns $1.59 in tax benefit

I have heard this many times in recent weeks, I have no idea who ginned up these figures

But undoubtedly our faux intellectual president has swallowed this


2 posted on 01/27/2009 3:55:35 PM PST by silverleaf (Fasten your seat belts- it's going to be a BUMPY ride.)
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To: neverdem
I don't buy that "authority to" equals "must regulate CO2.." or any particular molecules.

thus, Massachusetts effectively requires the imposition of carbon-dioxide controls on new cars and trucks.

I don't think the ruling does this. It gives authority to, but the EPA could say "Manmade CO2, while a portion of greenhouse gases, has no measurable effect, and therefore the ceiling of its regulation is so high as to be negligible."

Obamites are NOT going to say this, but a different administration could and be within the ruling.

It's still bad news, but by authorizing, not mandating.

3 posted on 01/27/2009 3:57:00 PM PST by D-fendr (Deus non alligatur sacramentis sed nos alligamur.)
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To: neverdem

Just makes you want to drop a burning tire in the town square doesn’t it?


4 posted on 01/27/2009 4:48:29 PM PST by TigersEye (This is the age of the death of reason.)
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To: TigersEye

Indeed.


5 posted on 01/27/2009 5:26:55 PM PST by Nuc1 (NUC1 Sub pusher SSN 668 (Liberals Aren't Patriots))
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To: Nuc1

I wonder how much CO2 the average 14” tire would release? About five year’s worth compared to the exhaust of the average car? Questions to ponder.


6 posted on 01/27/2009 5:41:36 PM PST by TigersEye (This is the age of the death of reason.)
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To: D-fendr
I don't think the ruling does this. It gives authority to, but the EPA could say "Manmade CO2, while a portion of greenhouse gases, has no measurable effect, and therefore the ceiling of its regulation is so high as to be negligible."

You are correct, they could say that, but they would likely lose in court based on the language of the Clean Air Act.

Once grouped in with SOX, NOX, Ozone, etc., a few things happen automatically. The biggest of which are noted in the article above, and the most immediate of which is making CO2 a pollutant regulated under the new source review provisions of the CAA.

That provision makes any source which emits >250 tons per year of any such regulated pollutant a major stationary source. That forces a lot of pain in the ass provisions including BACT, additional impacts analysis (flora and fauna), growth, etc.

EPA could come out and "say" it doesn't apply to CO2, but that would also be against the language in the CAA - if they want to hammer power plants and industries with the definition - they'll get stuck hammering schools and large buildings, and whatnot.

My opinion is - let them do it, let them try to exempt some types of facilities (say the New York Times Office Building), and then let the industries that are the intended targets of this crap hammer them with lawsuits to force Congress to change the CAA.

The whole process is broken, and I am actually looking forward to seeing what happens when the whacko environmentalists get what they wish for. With any luck it will be a substantial backlash...

7 posted on 01/27/2009 5:41:43 PM PST by !1776!
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To: neverdem
This is not a prediction about what Congress or the EPA will choose to do, but an assessment of what current law requires.

If the law requires that, then the law is a ass.

8 posted on 01/27/2009 5:54:58 PM PST by Ole Okie
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To: neverdem

“We’re screwed.”

That about sums up the Obama administration.

We can have draconian regulation of CO2 without even a bill in Congress. It’s an awful situation on environment. Freedom is out the window.


9 posted on 01/27/2009 8:22:28 PM PST by WOSG (Oppose the bailouts, boondoggles, big Government -)
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To: !1776!

Many thanks for the clarification and correction.


10 posted on 01/27/2009 9:47:36 PM PST by D-fendr (Deus non alligatur sacramentis sed nos alligamur.)
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To: D-fendr

“I don’t buy that “authority to” equals “must regulate CO2..” or any particular molecules.”

You don’t have to. It’s like arguing that the Congress cant pass campaign finance reform because it violates the 1st amendment. Since when did actual law get in the way? The eco-extremists are eager to usurp our liberties any way they can and wont hesitate to use any tool at their disposal.

The article is basically telling us the EPA can claim authority to regulate CO2 and no court will stop them.
How can they when the SCOTUS already granted that authority?


11 posted on 01/27/2009 10:13:20 PM PST by WOSG (Oppose the bailouts, boondoggles, big Government -)
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To: WOSG

My thinking was that though the courts wouldn’t stop them, congress or the executive could.


12 posted on 01/28/2009 1:02:23 AM PST by D-fendr (Deus non alligatur sacramentis sed nos alligamur.)
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To: WOSG
Where is the COnstitutional authorization for an EPA?

What gives them the power to legislate?

What gives them the power to levy taxes?

No, the law sure doesn't get in the way, even though that is what it was designed to do.

13 posted on 01/28/2009 2:17:58 AM PST by Smokin' Joe (How often God must weep at humans' folly. Stand fast. God knows what He is doing.)
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To: neverdem; IrishCatholic; Normandy; According2RecentPollsAirIsGood; Fiddlstix; ...
 




John Holdren,
Climate Specialist Susperstitionist

14 posted on 01/28/2009 3:16:24 AM PST by steelyourfaith (ObamaNation: Tax cheat sworn in as Treasury Seretary --- you can't make this stuff up !!!)
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To: silverleaf
every US dollar spent on “green” energy returns $1.59 in tax benefit

I have heard this many times in recent weeks, I have no idea who ginned up these figures

And I can virtually guarantee that if the "benefit" is less than 3.5/1, it is faux and will be a money loser.

Don't know whose WAG the $1.59/1 may be, but I suspect Hansen or Gore.

15 posted on 01/28/2009 7:37:22 AM PST by Ole Okie
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To: D-fendr
Many thanks for the clarification and correction.

Your thanks is only accepted for the clarification...

I would only be able to provide a "correction" if I could tell you that any of this had a snowballs chance in hell to make sense and that there was a light at the end of the tunnel.

Problem is - I have learned that when dealing with environmental rules or laws, the only way to be successful is to throw common sense, logic, and intelligence out the window, and proceed from there.

As a result - even if I might be right on the regulatory and legal aspects (big if), you are still right on the common sense front - therefore I can not accept anything that might relay that I am making a correction, because correction, at least to me, implies common sense and logic.

Take care my friend.

16 posted on 01/28/2009 4:04:37 PM PST by !1776!
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