April 2011

The House of Representatives is scheduled to debate and pass H. R. 910, the Energy Tax Prevention Act, on Wednesday.  The Senate could also vote this week on an amendment offered by Minority Leader Mitch McConnell that is identical to the Senate version of the Energy Tax Prevention Act, S. 482.  H. R. 910 was introduced by the Chairman of the Energy and Commerce Committee, Fred Upton.  S. 482 was introduced by Senator James M. Inhofe, Ranking Republican on the Environment and Public Works Committee.  Here are talking points I prepared for Freedom Action on the legislation.

1. This is a debate about who has authority to decide our nation’s regulatory policies—Congress or autonomous executive agencies.  The first sentence of the first article of the Constitution should be determinative.
2. H. R. 910 / S. 482 is not about what Members think about climate science.  It is about whether they think that using the Clean Air Act to regulate greenhouse gas emissions is the proper policy.
3. Congress never intended for the Clean Air Act to be used to regulate greenhouse gas emissions and in fact explicitly rejected an attempt in the debate over the Clean Air Act Amendments of 1990 to add such language to the Act.  H. R. 910 / S. 482 pre-empts regulation until Congress authorizes it.
4. Cap-and-trade legislation failed in the 111th Congress, yet the Environmental Protection Agency is now trying to achieve the same result through a regulatory end-run around Congress.
5. H. R. 910 / S. 482 does not in any way restrict or change the Clean Air Act’s regulation of air pollution.  It instead restores the Act to achieve Congress’s original intent.
6. The United States derives over 80% of its total energy from the three fossil fuels now being regulated by the Clean Air Act on the basis of EPA’s Endangerment Finding.  The Obama Administration has in effect decided that the EPA knows how to run the U. S. economy.
7. Regulating greenhouse gas emissions is an indirect tax on energy.  By raising energy prices, it will make consumers poorer and manufacturing and transportation more expensive, thereby destroying jobs; and it will likely result in perpetual economic stagnation.  A 2010 study published by Harvard University’s Belfer Center concluded that meeting President Obama’s targets to reduce greenhouse gas emissions would require a gasoline price of $7-9 a gallon.  President Obama said in 2008 that under his plan, “…electricity rates would necessarily skyrocket.”
8. EPA claims that it will implement its regulations in a reasonable way that minimizes costs.  The Tailoring Rule (which overturns explicit language in the Clean Air Act) is offered as evidence of EPA’s reasonableness.  However, EPA cannot determine the outcome of the many lawsuits that have been filed by environmental pressure groups to require faster and deeper emissions reductions.
9. The Clean Air Act is a complicated set of interlocking regulatory mechanisms.  The logical outcome is that the courts will require EPA to set a National Ambient Air Quality Standard.  The entire world will then be out of attainment for carbon dioxide levels.  A NAAQS gives EPA almost unlimited power to deny permits for new and operating facilities in non-attainment areas.
10. H. R. 910 / S. 482 pre-empts the major vehicle for regulating greenhouse gas emissions, the Clean Air Act.  However, there are others: Endangered Species Act, National Environmental Policy Act, Clean Water Act, common law nuisance lawsuits, etc.  Congress should block these other routes to unauthorized regulation through amendments to H. R. 910 or through future legislation.