The first of EPA’s greenhouse gas regulations kicked in yesterday (Sunday, Jan. 2). More are on the way. Is the agency following the law or doing an end-run around democracy?
My New Year’s Day column in PajamasMedia.Com addresses this vital issue. The column restates what seems to me the common sense of the matter. When Congress enacted the Clean Air Act in 1970, it did not design or intend the Act to be a framework for global climate change policy, let alone for de-carbonizing the U.S. economy. Congress, moreover, has never, in the intervening years, given its approval for the Act to be used as such a framework, or for such purposes.
Restating the obvious is important at this time because the greenhouse lobby is trying to persuade the incoming 112th (Tea Party) Congress that stopping EPA’s power grab would undermine (“roll back”) the Clean Air Act. EPA, they claim, is acting “under court order” and just following the law as interpreted by the Supreme Court in Massachusetts v. EPA. In effect, EPA’s apologists argue, Congress’s only ethical choice is to sleep in the bed it made back in 1970 and let EPA determine climate policy.
This is bunkum for three main reasons. First, the Supreme Court in Mass. v. EPA did not order EPA to regulate greenhouse gases. The Court said that EPA could decline to regulate if it provided an explanation grounded in statutory reasons (p. 32). EPA did not even discuss this option, preferring to push the start button on a regulatory process that would dramatically expand its control over the economy.
Second, and more importantly, the 5-4 majority misread the Clean Air Act, setting the stage for an economy-squashing array of “absurd results” that EPA now can avoid only by amending (“tailoring”) the statute, which is not kosher under our Constitution of separated powers. The Supreme Court’s errors are the main focus of my Pamajas Media column and a MasterResource.Org column last summer rebutting former EPA Administrator Russell Train’s argument that EPA is merely acting as Congress intended.
Third, even if it were true (it is not) that the 1970 Clean Air Act implicitly authorizes EPA to make climate policy, Congress should still stop EPA. As explained in both aforementioned columns, once the Clean Air Act is applied to greenhouse gases, the logic of the Act impels its transformation into an Anti-Stimulus Program or even an economically-suicidal de-industrialization mandate.
Besides, if war is too important to be left to the generals, climate policy is too important to be left to non-elected, politically-unaccountable, bureaucrats, trial lawyers, and activist judges appointed for life. Congress, not EPA, should decide the content and direction of national policy.