S. 482: A Skeptical Review of Boxer’s Tirade

by Marlo Lewis on March 31, 2011

in Blog, Features

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Yesterday, Sen. Barbara Boxer (D-Calif.) mounted a tirade (Congressional Record, pp. 1955-57) against the McConnell amendment (a.k.a. S. 482, the Inhofe-Upton Energy Tax Prevention Act) to the small business reauthorization bill (S. 493). The amendment would stop EPA from ‘legislating’ climate policy under the guise of implementing the Clean Air Act (CAA), a statute enacted in 1970, years before global warming emerged as a public policy issue.

The Senate is expected to vote later today on S. 493, so it worthwhile examining Boxer’s speech, which opponents of the bill will undoubtedly recycle in today’s debate.

I discuss the rhetorical traps S. 482 supporters should avoid in an earlier post. Stick to your moral high ground, namely, the constitutional premise that Congress, not an administrative agency with no political accountability to the people, should make the big decisions regarding national policy. The fact that Congress remains deadlocked on climate and energy policy is a compelling reason for EPA not to ‘enact’ greenhouse gas (GHG) controls. It is not an excuse for EPA to substitute its will for that of the people’s representatives.

Okay, that said, let’s examine Boxer’s rant. It is lengthy, repetitive, and often ad homonym, so I’ll try to hit just the main points.

Boxer: S. 482 would “stop the Environmental Protection agency forever from enforcing the Clean Air Act as it relates to carbon pollution.”

She begs the question. How does the CAA “relate” to carbon pollution? The CAA never mentions “greenhouse gases,” “greenhouse effect,” or “global climate change.” It mentions carbon dioxide (CO2) only once — Sec. 103(g) — a provision authorizing EPA to “develop, evaluate, and demonstrate non regulatory strategies for air pollution prevention” (emphasis added). Lest any trigger-happy EPA regulator see the words “carbon dioxide” and go off half-cocked, Sec. 103(g) concludes with an admonition: “Nothing in this subsection shall be construed to authorize the imposition on any person of air pollution control requirements.”

Boxer: “This [S. 482] is a first of a kind. It has never been done. It is essentially a repeal of the Clean Air Act as it involves one particular pollutant, carbon, which has been found to be an endangerment to our people.”

Again, the only provision in the CAA “as it involves” CO2 admonishes EPA not to regulate.

Boxer: “I guess the question for us as a body is, Whom do we stand with, the biggest polluters in America or the American people, 69 percent of whom said in a bipartisan poll: ‘EPA should update Clean Air Act standards with stricter air pollution limits.’’’

The folks Boxer is pleased to call “polluters” are also energy producers and job creators.

The poll she invokes is meaningless. Everybody is for cleaner air in the abstract. That tells us nothing about how much they are willing to pay for it, or what other public priorities (e.g. affordable energy, job creation) they are willing to sacrifice or put at risk. Far more relevant for Congress is the November 2010 elections. Voters punished lawmakers who supported the stealth energy tax formerly known as cap-and-trade. By threatening to sic EPA on CO2 emitters if Congress did not enact cap-and-trade, Team Obama tacitly acknowledged that EPA’s GHG regulations are less efficient, less predictable, and potentially more costly than the Waxman-Markey bill they could not sell to Congress and the public.

[Update: In a Mar. 27-29, 2011 survey by the Tarrance Group of 800 likely registered voters, 64% agree that “no new expensive regulation of business should be allowed without first getting approval from Congress,” and a majority (53%) say that the level of environmental regulation should remain where it is now (25%) or there should be less (28%).]

Boxer: “Mr. President, 69 percent believe ‘EPA scientists, not Congress, should set pollution standards.’ But we have Senators playing scientist, putting on their white coats, deciding what EPA should do, when it ought to be based on science.”

S. 482 takes no position one way or the other on climate science. Nor would it put Congress in charge of setting pollution standards. Rather, S. 482 simply affirms that Congress, not EPA, should decide national policy on climate change.

Note also the biased phrasing (“EPA scientists”) of the poll question Boxer quotes. EPA and its apologists would have us believe that the agency is an apolitical honest broker — a gathering of scientific elders who seek only truth and care not for their agency’s power, prestige, and budget, and act in splendid isolation from the policy preferences and agendas of the environmental movement. Dream on!

Although there are surely honest people at the agency, EPA is not an honest broker. EPA is a major stakeholder, a big dog in the fight. Boxer ignores the massive conflict of interest that Congress, wittingly or otherwise, built into the CAA. The same agency that makes endangerment findings gets to regulate based on such findings. EPA therefore has an organizational interest in interpreting the science in ways that expand its power. This ethically flawed situation was tolerable when EPA confined itself to regulating substances that Congress authorized EPA to regulate (ambient air pollutants, toxic air pollutants, acid rain precursors, ozone depleting substances). But, to repeat the obvious fact that Boxer studiously avoids, Congress never told EPA to regulate the class of substances known as “greenhouse gases.”

Boxer: “What is the science telling us? That it is dangerous to breathe in air pollution with lots of carbon in it.”

Got that? In the same breath that Boxer scolds her GOP colleagues for not heeding science, she demonstrates her ignorance of science.  Carbon dioxide, like water vapor, the atmosphere’s main greenhouse gas, is an essential constituent of clean air.

S. 482 supporters please note: The oft-repeated phrase “carbon pollution” is meant to mislead the public. It embodies one of the oldest rhetorical tricks in the book, which is to call something benign or even beneficial by a name commonly given to something odious. When EPA’s apologists deliberately confuse CO2 with air pollution and denounce S. 482 as the “dirty air act,” they tacitly confess that they cannot sell global warming policy on its own merits.

Boxer: “Every single time we try to rein in pollution, special interests say: No, no, no, a thousand times no. We will stop growth. We will stop jobs. We will kill the economy. It is awful, awful, awful. Let me give one economic fact: If you can’t breathe, you can’t work. Here is a picture of a little girl suffering, struggling. I urge my colleagues who support Senator McConnell to look at this. They are not here, but maybe on TV they will. Look at this picture. Is that what we want for her future?”

This is either sheer demagoguery or invincible ignorance. Let me count the ways: (1) Boxer provides not one scrap of evidence that the child in the picture would not have asthma or would not have to wear a respirator if EPA adopts tougher controls on air pollution. (2) S. 482 in no way restricts EPA from issuing regulations targeting ozone, particulate matter, or other pollutants that affect respiratory function. (3) Air pollution will continue to decline even if EPA were to freeze current regulations in place because newer, cleaner vehicles and equipment will continue to replace older models and capital stock. (4) Air pollution at today’s historically low levels is not likely a major factor in childhood asthma. As Joel Schwartz and Stephen Hayward observe (see Chapter 7 of their book, Air Quality in America), air pollution has declined as asthma has been rising, and hospital visits for asthma are lowest in July and August, when ozone levels are highest.

Boxer: “If I went up to you and I said: If you know something worked perfectly well, would you mess with it? Would you change it? No. Why would you, if it is working well?”

The CAA may not be perfect, but it was certainly working better before EPA started to mess with it. As EPA itself confesses, regulating GHGs via the CAA leads to “absurd results” — policy outcomes that conflict with and undermine congressional intent. EPA and its state counterparts would have to process an estimated 81,000 preconstruction permit applications per year (instead of 280) and 6.1 million operating permits per year (instead of 15,000). The permitting programs would crash under their own weight, crippling both environmental enforcement and construction activity while exposing millions of non-permitted firms to new litigation risks. A more potent Anti-Stimulus Program would be hard to imagine. This is not what Congress authorized when it enacted the CAA in 1970, nor when it amended the statute in 1977 and 1990.

To avoid such “absurd results,” EPA issued its so-called Tailoring Rule, which revises CAA definitions of “major emitting facility” to exempt all but very large CO2 emitters from the permitting programs. But this just substitutes one absurdity for another.

“Tailoring” is bureaucrat-speak for “amending.” To avoid breaking the CAA beyond repair, EPA must play lawmaker, flout the separation of powers, and effectively rewrite portions of the statute. Nothing in the CAA authorizes EPA to revise the text in order to avoid an administrative debacle of its own making.

One would think that a Senator might be jealous of the authority exclusively vested in Congress by the Constitution. But no, Boxer is eager to have EPA ‘legislate’ climate policy and ‘amend’ the CAA provided the agency implements an anti-carbon agenda the Senate has repeatedly declined to pass.

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