Will Congress protect the economy and the Constitution from Mass. v. EPA?

by Marlo Lewis on January 8, 2010

In this twopart post on MasterResource.Org, the free-market energy blog, I argue that the EPA’s proposed Tailoring Rule is a temporary, legally questionable, and incomplete antidote to Massachusetts v. EPA’s legacy of “absurd results.”
 
Here is the gist of the column:
 
Congress did not intend to apply the Clean Air Act’s preconstruction permitting (PSD) and Title V operating permits programs to small entities, did not intend for those programs to implode under their own weight, did not intend for PSD to stop development, and did not intend for Title V to undermine Clean Air Act compliance.
 
However, those are the inexorable consequences of the greenhouse gas endangerment finding and motor vehicle emission standards that the Court authorized and indeed pushed EPA to make. To avoid this mess, which would likely produce a fierce political backlash against EPA and the Obama administration, the Agency now proposes via the Tailoring Rule to amend the PSD and Title V programs.
 
This breach of the separation of powers only compounds the constitutional crisis inherent in the Court’s attempt to legislate global warming policy from the bench.

Even if the Tailoring Rule survives judicial scrutiny despite its flouting of clear statutory language, it will provide no defense against Mass. v. EPA’s most absurd result: regulation of carbon dioxide under the National Ambient Air Quality Standards (NAAQS) program.

Congress must step up to the plate and either overturn Mass. v. EPA, overturn the endangerment finding, or, at a minimum, prohibit EPA from regulating carbon dioxide from stationary sources.

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