The Chamber of Commerce recently bowed to pressure from big member companies which have crafted schemes to pick your pocket under cap-and-trade, and cravenly pleaded for some form of global warming legislation. It defended this with the argument distilled as “we merely restated our position. A different way.” So it is with Congress, in a fashion, with its controversial Sec. 707 identically stuck in both the Waxman-Markey and Kerry-Boxer bills.
Some on Team Liberty insist there’s nothing to see here, because you’ll notice that the language says the President “shall” exercise “existing statutory authority”. QED. My former CEI colleague Jonathan Adler adopts Ed Morrissey’s position posted on Hot Air, phrasing it on Volokh:
“The above provision grants no new powers to the federal government, let alone the President. Zero. Zilch. Rather, it directs the President to have agencies use “existing statutory authority” to ensure greater greenhouse gas emission reductions. In other words, it requires the President to ensure that agencies are using all the tools Congress has already delegated to them to reduce greenhouse gas emissions – tools that such agencies could use even if the section is not triggered – and demands the President “submit to Congress” a request for additional authorities the President believes are necessary to ensure greater emission reductions. Moreover, insofar as this provision constrains the Executive Branch’s discretion over what emission-reduction measures it wants to take, it actually reduces executive authority.”
That first part is true. It says use all existing authority. All of these tools. But, um, a (often radically) different way, that is, for a (often radically) different purpose. That “shall” thing is big, too. Leaning too heavily on “existing authority” to say there’s nothing new here has several perils, including that it ignores that this phrase is read by the courts as meaning existing laws, not existing applications of these laws. Jonathan is correct. Existing tools. This provision mandates using them in new ways.
It says use all existing authority – the Clean Water Act, NEPA, Endangered Species Act, and any federal law requiring a permit for any economic activity that does or could lead to GHG production – in a way that (to be charitable) is not at all clear is consistent with the legislative intent, design or otherwise (before this bill) feasible use.
This asserts on Congress’s behalf that these laws are now legislatively intended to serve as GHG suppression regimes. After establishing, in an earlier provision, causation by and harm from each and every existing or new increment of economic activity that uses or produces resources.
That’s new. That’s big. Both on its face and taken in context. All laws intended for purposes A, B, and C are now also expressly intended to be used – mandated – to chase an elusive global GHG concentration downward by emission avoidance. This is not the IRS getting Capone on tax evasion because the Feds couldn’t nail him for his racketeering, murder, etc. Tax evasion laws were intended to be used against tax evaders no matter what else those people did, and were employed for the purpose of prosecuting tax evasion.
Not every law on the books was intended to keep CO2 from being emitted. Now, everything in an enormous suite of laws intended to (again, being charitable) manage interstate commerce in the name of ensuring free-flow of goods, services, and other economic activity turned into an environmental law seeking, in practice, the rationing of permitted interstate commerce in the name of the atmosphere.
I have a book to write, right now. My earlier foray was not as short or concise as one prefers and pursues when one has the time. I didn’t, and still don’t. But the conclusion and argument there was still clear enough when read:
“My point, truncated, is that this provision at issue clears out any legal clutter possibly standing in the way of ongoing attempts to treat the ESA, CWA, NEPA, and in fact all other laws on the books as carbon dioxide suppression/ avoidance laws. These laws, particularly ESA, are sweeping in their power even to shut down, but particularly to block anything new. That is in many ways a game-changer for the greens, is why it is being fought, and saves years in the courts fighting over whether such authority actually exists….
The first paragraph at issue tells the executive branch to use all existing laws (and all authorities in this bill) to do whatever it thinks necessary to try and lower atmospheric GHG concentrations below where they are the day the law goes into effect; this of course goes far and beyond “cap-and-trade” quotas and timetables. The second paragraph says you can also ask Congress to spell it out if you think you are lacking authority despite “(a)”. But “(b)” is a complement to, not a condition precedent for, aggressive action under “(a)”.
This language approves the idea of implementing all federal statutes as GHG suppression measures. How huge that is is impossible to overstate. There is nothing on the books today supporting that proposition. ..Adopting such authority as that at issue here is not smart. The provision is not an accident. …This language is a license to steal. It is a serious threat. Arguing whether it creates new authority argues a distinction without a difference.”
So all remains the same. Just radically different. “But these laws could’ve been used as such, before!” Hmm. “Could’ve”, maybe, but that’s a stretch. But now they must. NEPA and ESA, with language and regulatory extensions sympathetic to that use, have been slouching there for some years and are just about there to different degrees but aren’t there yet. They, and every other law on the books – every one – now immediately are, if this passes. That’s new. That’s a big tool.