Did Congress Intend for EPA to Regulate CO2 through the Clean Air Act?

On June 10, the Senate will debate and vote on S.J.Res.26, a resolution of disapproval sponsored by Republican Senator Lisa Murkowski of Alaska to stop EPA from ‘enacting’ controversial global warming policies through the regulatory back door.

S.J.Res.26 would overturn the legal force and effect of EPA’s endangerment finding, a December 2009 rulemaking in which the agency concluded that greenhouse gas emissions endanger public health and welfare. The endangerment finding is both trigger and precedent for sweeping policy changes Congress never approved. America could end up with a bundle of greenhouse gas regulations more costly and intrusive than any climate bill or treaty the Senate has declined to pass or ratify, yet without the people’s representatives ever voting on it.

Of course, not everbody sees it that way. In a recent letter urging Senators to vote against the Murkowski resolution, former EPA Administrator Russell Train contends that Congress did intend for EPA to regulate greenhouse gases through the Clean Air Act. His argument may be summarized as follows: 

1. Congress enacted the Clean Air Act.
2. The Act requires EPA to regulate air pollutants which in its judgment endanger public health or welfare.
3. EPA has determined that greenhouse gas emissions endanger public health and welfare.
4. Therefore, Congress intended for EPA to regulate greenhouse gases.
5. Hence, S.J.Res.26 would “roll back” and “undermine” the Clean Air Act.

A moment’s reflection, however, reveals that this argument is an empty suit. All it proves is that EPA has jumped through the requisite procedural hoops, which nobody disputes. It in no way demonstrate that Congress intended for EPA to regulate greenhouse gases.

As I explain today on MasterResource.Org, the free-market energy blog, Train ignores the obvious:

1. Congress did not design the Clean Air Act to be a framework for climate policy.
2. Congress has never voted for the Act to be used as such a framework.
3. Applying the Clean Air Act to carbon dioxide leads to “absurd results” — regulatory consequences that conflict with and undermine congressional intent, as even EPA admits.
4. Unless stopped, EPA will be in a position to determine the stringency of fuel economy standards for the auto industry, set climate policy for the nation, and even ‘amend’ portions of the Clean Air Act (to avoid some, but not all, absurd results). These are powers Congress never delegated to EPA.

The importance of the vote on S.J.Res.26 is hard to exaggerate. Nothing less than the integrity of our constitutional system of separated powers and democratic accountability hangs in the balance.