Will Rep. Fred Upton Stand up to the EPA?

by Myron Ebell on January 1, 2011

in Blog

Representative Fred Upton (R-Mich.), the incoming Chairman of the House Energy and Commerce Committee, and Tim Phillips, president of Americans for Prosperity, published an op-ed in the Wall Street Journal on December 28 on “How Congress Can Stop the EPA’s Power Grab.”  They mention that, “The best solution is for Congress to overturn the EPA’s proposed greenhouse gas regulations outright.”  However, most of their article discusses two more limited alternatives.  Upton and Phillips favor delaying EPA until the court cases challenging EPA’s legal authority are decided over the proposal originally made by Senator Jay Rockefeller (D-WV) for a two-year delay.  They call a two-year delay arbitrary and express some confidence that the federal courts are going to find that EPA lacks legal authority to regulate greenhouse gas emissions.

I believe their confidence is misplaced.  There is a long history of federal courts deferring to the EPA as long as the EPA is asserting broader regulatory authority.  What worries me more is that Upton and Phillips seem to be implying that if the federal court tells EPA that they can go ahead and regulate, then Upton and Phillips will be happy and the Congress should be happy with that outcome.  It seems to me that a senior Member of Congress should be arguing that it is up to Congress to decide whether and how to regulate greenhouse gas emissions and therefore that the court’s decision is irrelevant.  Moreover, as a matter of political strategy, I think it is dangerous for the Congress to wait for a court decision before acting.  If the court allows regulation under the existing Clean Air Act, then environmental pressure groups will use that as an argument against any attempt in Congress to block or limit EPA.

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