Barton Or Bust! How to Stop Mass. v. EPA from Wrecking the Economy

Rep. Joe Barton (R-TX), ranking member of the House Energy and Commerce Committee, announced today that he plans to introduce a “resolution of disapproval” to overturn the Environmental Protection Agency’s (EPA’s) recently finalized endangerment finding on greenhouse gases.

This is  huge. It means that Republicans are going to insist that climate and energy policy be made by the people’s elected representatives rather than by non-elected judges, litigators, and bureaucrats. It means that EPA regulation of carbon dioxide (CO2) under the Clean Air Act (CAA or Act) will be an issue in the 2010 elections. It means that citizens will be able to hold accountable — and punish at the ballot box — any Member of Congress who votes against Barton’s resolution of disapproval and in favor of the compliance burdens, rising energy costs, and litigation risks to the economy that EPA regulation of CO2 unavoidably entails.

In a press release issued today, Barton stated:

“I want to announce that I and others on the Republican side will ask the House of Representatives to consider and pass a resolution strongly disapproving the discreditable decision by the Obama administration to outlaw carbon dioxide and with it, millions of jobs in America.

“The Environmental Protection Agency’s endangerment finding plainly was intended to make the president’s policies look good in advance of his visit to the Copenhagen global warming conference, not to advance any public good in America, but it also has policy implications that threaten serious damage to the economy for generations to come.

“The EPA’s finding accurately reflects the thousands of candid, outrageous e-mails that EPA’s allies in the global warming community sent to each other by demonstrating that public relations priorities rather than straightforward science are driving U.S. policymaking on global warming, and no where did anyone demonstrate a whiff of concern for who pays the bill or how they earn their living.

“Everybody also understands that the endangerment finding is supposed to prod Congress into resuscitating cap-and-trade legislation that is dying from overexposure to public scrutiny. The social cost of this public relations effort, however, will dwarf the hundreds of billions of dollars already spent by the most profligate administration in history.

“Worst of all, the policy envisioned by the Obama administration will treat the recession by committing the country to living with fewer jobs instead of more, and to taking even more money out of the pockets of those lucky enough to have jobs so that radical environmentalists can wage a war against nature.

“Congress has the right and the responsibility to nullify the decisions of the bureaucracy when they run counter to the people’s interests, and a formal Resolution of Disapproval is fully warranted in this instance.”

Why is EPA inaugurating a regime of global warming regulations that Congress never voted for or approved?  Because the Supreme Court, in Massachusetts v. EPA (April 2007), decided to legislate global warming policy from the bench.

In Mass. v. EPA, eco-litigation groups, led by a baker’s dozen state attorneys general, attempted to do an end run around Congress and impose Kyoto-like policies on the U.S. economy through judicial fiat. They found five willing accomplices on the Court, who essentially ruled that Congress authorized EPA to regulate GHGs for climate change purposes when it enacted the CAA in 1970 — decades before global warming became a public concern. The Court’s decision — an affront to common sense — all but ensured that EPA would issue an endangerment finding for greenhouse gases. That, in turn, would compel EPA, under CAA Sec. 202, to establish first-ever GHG emission standards for new motor vehicles.

However, what none of the principals in the case bothered to mention, is that once EPA adopts the GHG motor vehicle standards sought by plaintiffs, CO2 automatically becomes a pollutant “subject to regulation” under the Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program. Under the CAA, firms must obtain a PSD permit in order to construct or modify a “major emitting facility,” and a Title V permit in order to operate such a facility. A facility is major under PSD if it is in one of 28 categories and has a potential to emit 100 tons per year (TPY) of a regulated pollutant, or 250 TPY if it is any other type of establishment. A facility is major under Title V if it has the potential to emit 100 TPY of a regulated pollutant. As it happens, millions of previously unregulated buildings and facilities — office buildings, apartment complexes, big box stores, enclosed malls, heated agricultural facilities, small manufacturing firms, even commercial kitchens — emit enough CO2 to meet these thresholds.

EPA estimates that if PSD and Title V are applied as written to CO2 sources, the number of PSD permit applications per year would jump from 280 to 41,000, and the number of Title V permit applications would jump from 14,700 to 6.1 million! The CAA permitting programs would crash under their own weight, putting a freeze on new construction, and thrusting millions of firms into legal limbo. Thanks to Mass. v. EPA, the CAA is about to become an economic wrecking ball aimed straight at small business.

EPA’s October 2009 proposed Tailoring Rule attempts to avoid these “absurd results” by suspending the PSD and Title V requirements for any source emitting less than 25,000 tons per year (TPY) of CO2-equivalent GHGs. EPA hopes in this way to have its cake (the power to regulate CO2) and eat it (avoid an uncontrollable regulatory cascade that would provoke a backlash against the Obama administration, the eco-litigation fraternity, and the Court). But in order to pull off this trick, EPA must play lawmaker, effectively amend the Act, and violate the separation of powers.

Rep. Barton is right not to put his trust in the efficacy of this solution to the regulatory nightmare the Court conjured up in Mass. v. EPA. For one thing, it is unclear whether the Tailoring Rule will survive judicial challenge, because it flouts clear statutory language. Secondly, to preserve the fiction that EPA is not amending the Act, the Agency claims in the Tailoring Rule that its goal is to apply PSD and Title V to smaller and smaller CO2 sources over time, eventually including sources emitting 250 TPY and 100 TPY. EPA proposes to spend five years developing “streamlined” permitting procedures for smaller sources, but the legality of such contrivances is dubious as well, and at best streamlining would reduce irrational regulatory burdens on small business, not avoid them.

Finally, and most importantly, the Tailoring Rule, even if upheld by courts, would provide no protection from the most “absurd result” of the endangerment finding: Imposition of national ambient air quality standards (NAAQS) for CO2 that essentially require the de-industrialization of the United States.

The endangerment finding that EPA has just finalized substantively satisfies the endangerment test in CAA Sec. 108 that governs the first phase of a NAAQS rulemaking. The endangerment finding asserts that current atmospheric CO2 concentrations endanger public health and welfare, so logically, a NAAQS for CO2 would have to be set below current levels. Two eco-litigation groups, the Center for Biological Diversity (CBD) and 350.org, have already petitioned EPA to establish NAAQS for CO2 set at 350 parts per million (PPM). Their motto is “350 or Bust!”

The present atmospheric CO2 level is 390 PPM. Even if the entire world met the emissions reduction target of the Waxman-Markey bill — 83% below 2005 levels by 2050 — this would only “stabilize” CO2 concentrations at 450 PPM. Not even a global depression lasting many decades would be enough to reduce CO2 concentrations to 350 PPM. Yet under established legal interpretation, EPA is prohibited from considering compliance costs when establishing NAAQS.

Clearly, the only solid protection against Mass. v EPA’s “absurd results” is to nip the regulatory mischief in the bud. Barton’s resolution of disapproval would do just that. CBD and its allies have their slogan, and now the friends of liberty have one too: Barton or Bust!