When Senate Majority Leader Harry Reid announced that he did not have enough votes to pass a Cap-and-Trade bill, there was a noticeable sigh of relief. But regulations as a substitute was not necessarily a good thing.
Cap and Trade was not new. It was used to control sulfur emissions in order to diminish acid rain. The bill passed the House, by a slight margin, 219-212. But industry brought a lawsuit challenging it, and the court held that it was illegal. Senators Kerry and Lieberman and (till he dropped out) Lindsey Graham were working on the bill when Mr. Reid found he did not have the 60 votes needed to break a C&T filibuster.
If C&T was out, and nobody was ready to introduce as an alternative a bill to tax carbon, the situation gave EPA the opportunity to take the lead..
In theory, congressional C&T legislation could be superior to regulations by EPA. EPA’s capability in writing regulations is limited by law. EPA requires applicants to use the best most advanced existing technology. But suppose another way were found that would be cheaper or more efficient than best existing technology. EPA could not permit it, but a law could, or an amendment added to the law. As utility executives pointed out, Congress “has more freedom than EPA to set up a system using incentives and, possibly, a trading mechanism, to gradually reduce” greenhouse emissions. Even EPA Administrator Jackson agreed. But the Court having held that C&T is illegal, she was willing, eager, and able to write regulations.
EPA’s rationale was that C&T would “save lives” and improve health. EPA always makes that argument. Where are the dead bodies of those who died before EPA’s new regulation was adopted? Where are the data that prove its regulations “improve health”? There is no evidence.
In 2007 the U.S. Supreme Court held in Massachusetts vs. EPA that the EPA must determine whether greenhouse gases (GHG) from new motor vehicles cause or contribute to air pollution that may “reasonably be anticipated to endanger public health or welfare,” or whether “the science is too uncertain” to know. (Enter an opportunity for EPA to use the precautionary principle encouraging wrong-thinking actions or activities based on insufficient or no science.)
The Supreme Court did not instruct EPA to regulate carbon dioxide. It gave EPA that option.
EPA was required to produce an “endangerment finding.” It published its Advanced Notice of Proposed Rulemaking to regulate greenhouse gas emissions under the Clean Air Act on July 30, 2008. It held two public hearings and received 380,000 public comments. On April l7, 2009, EPA published its 133-paged endangerment finding.
Administrator Jackson chose to announce EPA’s take-over of GHG emissions at the Copenhagen Climate Conference of countries which had convened to commit themselves to decreasing GHG emissions. Her announcement established EPA’s claim for leadership in the global climate effort.
Carbon dioxide and (declared the Supreme Court) methane and four other gases are air-pollutants that could—not should, but could—be regulated under the Clean Air Act if they may reasonably be anticipated to threaten public health or welfare.
Just days before the Copenhagen climate conference, there suddenly burst an explosion of thousands of hacked e-mails from the Climate Research Unit of the University of East Anglia. To strengthen the case for global warming, they oozed corruption in basic temperature records, maintained by the scientific advocates of the theory of man-made global warming.
To Administrator Jackson, these ClimateGate e-mails don’t matter. They are about glacial matters, which is international and don’t concern EPA.
To five states, industry, and conservative organizations, they are of concern. Scores of industry groups were joined by the Competitive Enterprise Institute, Freedom Works, the Science and Environmental Policy Project, and the Southeastern Legal Foundation. New York City and sixteen states sought to intervene on behalf of EPA.
The lawsuits ask the U.S. Circuit Court to review EPA’s determination that human health and welfare are endangered by the six “pollutants” (besides CO2 and methane, they are nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride).
Jackson, for the scientific and technological basis of her endangerment finding, had relied chiefly on the controversial 4th annual report of the UN’s IPCC (Intergovernmental Panel on Climate Change).
Legally, EPA is vulnerable, but politically? Is the Clean Air Act to be used to reduce emissions that lead to climate change? “It should be up to us in Congress to set the policy of this country, not [EPA] an unelected bureaucrat,” argued Senator Lisa Murkowski. She introduced in the Senate a “disapproval resolution” which lost, 47-53.
Representative Marsha Blackburn had a bill to limit regulation of carbon-dioxide emissions to human health, and not to climate change.
Majority Leader Reid announced that he will present a “scaled-back” energy bill which will not provide for C&T.
In the end, will EPA have complete control over the supply and use of energy? “If EPA moves forward and begins regulating stationary sources, it will open the door for them to regulate everything from industrial facilities to farms to even American homes,” warned the National Association of Manufacturers’ President John Engler. Already a news account of February reported that the EPA’s plans for the following month were “to finalize new greenhouse gas rules for automobiles and large stationary sources.”
By Natalie Sirkin